Bond v. Busch

• Decision Date: 22 December 1981
• Docket Number: No. 10027,10027
• Citation: 313 N.W.2d 704
• Parties: Sharon Lee BOND, Plaintiff and Appellee, v. John BUSCH, d/b/a Busch Gardens, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 704

313 N.W.2d 704

Sharon Lee BOND, Plaintiff and Appellee, v. John BUSCH, d/b/a Busch Gardens, Defendant and Appellant.

Civ. No. 10027.

Supreme Court of North Dakota.

Dec. 22, 1981.

No appearance or brief for plaintiff and appellee.

Irvin B. Nodland and Patrick A. Conmy, of Lundberg, Conmy, Nodland, Lucas & Schulz, Bismarck, for defendant and appellant; argued by Conmy, Bismarck.

VANDE WALLE, Justice.

John Busch appealed from a memorandum opinion issued by the district court of Burleigh County on May 20, 1981, denying Busch's motion to rescind an order in aid of execution entered by the district court on March 27, 1981. We dismiss the appeal.

Sharon Lee Bond obtained a judgment against John Busch, d/b/a Busch Gardens, on July 16, 1980. On March 27, 1981, Bond filed a motion for an ex parte order in aid of execution alleging that a judgment against Busch had been obtained by Bond on July 16, 1980; that an execution was issued on December 23, 1980; that the execution was returned unsatisfied; that Busch was known to carry large amounts of cash on his person; that Busch had admitted he used cash to pay the obligations of his business, Busch Gardens; and that Bond believed that she could not collect the judgment without an order directing the sheriff to seize the cash on the person of Busch, upon the premises of Busch Gardens, or elsewhere. In support of her allegation that Busch admitted he used cash to pay the obligations of his business, Bond attached to her motion uncertified copies of three pages of a deposition taken of Busch on February 26, 1981. That deposition was taken in another case involving Busch but not Bond. The purpose of the attachment of a portion of the deposition was, according to the motion, to indicate "that Mr. Busch carries amounts of non-exempt property in the form of cash." Bond's application for an order in aid of execution was granted, without a hearing, and an order in aid of execution was issued the same day, i.e., March 27, 1981. The order in aid of execution ordered the sheriff to satisfy the judgment "out of the cash upon the person of John Busch, upon the premises of Busch Gardens, or elsewhere as the same may be found; ..."

Subsequent to the issuance of the order in aid of execution, Busch apparently was personally searched and small amounts of money were taken from his person. Busch then filed a motion to rescind the order in aid of execution. A hearing was held, resulting in the May 20, 1981, memorandum opinion from which this attempted appeal is taken.

In the memorandum opinion the trial court considered the issue of whether or not a writ of execution can be issued to direct the sheriff to seize money from the pocket of the judgment debtor. The trial court considered Busch's claim that the order of execution violated his rights under the Fourth Amendment to the United States Constitution. ¹ The trial court noted that it doubted that the Fourth Amendment has application because post-judgment collection procedures involve judicial supervision. The trial court concluded that because Bond had made application and a showing before the trial court prior to the time the execution was issued, there had been judicial intervention which satisfied the Fourth Amendment guarantees if they were applicable to the execution proceedings.

On appeal Busch sets forth the following issue:

"On the basis of an unsworn petition, may a District Court issue an Order in Aid of Execution in a civil matter which allows a sheriff to search and seize property of a judgment debtor that may be on his person, in his personal residence or place of business?" ²

The thrust of Busch's argument appears to be that an insufficient presentation was made to the district court at the time of the issuance of the order in aid of execution and that no additional supporting documentation was presented to the trial court after the order in aid of execution had been challenged by Busch. Busch urges us to establish guidelines under which orders in aid of execution may be issued. He argues that orders in aid of execution which permit intrusion into a person's place of residence, property, and personal effects or the search of the person should not be permitted unless some minimum showing of fraud or secretion of property subject to levy has been made. Even in those instances in which such a showing is made, Busch asks us to establish some limitations as to frequency, time, and conditions for such civil searches.

Although an expedition into these waters might appear tempting, we must refuse Busch's request and dismiss the appeal. ³

Section 28-21-07, N.D.C.C., provides that an execution shall be returnable to the clerk with whom the record of the judgment is filed within sixty days after its receipt by the sheriff. In Workman v. Salzer Lumber Co., 51 N.D. 280, 199 N.W. 769 (1924), the court held the statutory provision to be directory where the sheriff had seized the property under a special writ within the sixty-day period but did not sell it until after the sixty-day period. The...