Dowlings, Inc. v. Mayo
| Decision Date | 05 November 1979 |
| Docket Number | No. 115-79,115-79 |
| Citation | 409 A.2d 588,137 Vt. 548 |
| Court | Vermont Supreme Court |
| Parties | DOWLINGS, INC. v. Malcolm MAYO and Ronald Pierce. |
Wolchik & Williams, Morrisville, for plaintiff.
Anthony B. Lamb of Paul, Frank & Collins, Inc., Burlington, for defendant Pierce.
Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.
The plaintiff-appellee obtained a judgment in the District Court of Vermont, Unit No. 3, Franklin Circuit against Lee A. Delphia, d/b/a Lee's Restaurant, in the amount of $243.39. Plaintiff's attorney forwarded a writ of execution to the defendant Mayo who returned the execution unsatisfied. The attorney then sent an alias execution to the defendant-appellant Pierce with specific instructions as to levy. This execution was returned unsatisfied. Plaintiff thereafter filed a complaint against the defendants Mayo and Pierce in the Washington Superior Court alleging that the defendants had failed and refused to satisfy either writ of execution and seeking mandamus compelling the defendants to obey the command of the writs of execution. Plaintiff also sought attorney's fees and costs. After trial by court it was ordered:
(1) That the defendant Mayo or the present high sheriff of Washington County and/or defendant Pierce as constable of Waterbury, properly serve an Alias Writ of Execution against the goods chattels and lands of Lee Delphia or against cash in the cash register at any place of business of Lee Delphia.
(2) Judgment in plaintiff's favor against defendants Malcolm Mayo and Ronald Pierce, jointly and severally, in the amount of $674.36 together with costs in the amount of $32.06 for a total of $706.42, and plaintiff have execution therefor.
Both defendants appealed, but only the defendant Pierce preserved his rights of appellate review by timely filing. V.R.A.P. 4. We are confined to a review of the findings of facts, conclusions of law and judgment only as they relate to the defendant Pierce.
It is the duty of a constable to "serve and execute lawful writs . . . directed to him, according to the precept thereof." 24 V.S.A. § 293; 12 V.S.A. § 693. Defendant received a writ of execution and a letter from the plaintiff. The letter was captioned: "Dowlings, Inc. vs. Lee A. Delphia d/b/a/ Lee's Restaurant." It read in part as follows:
The enclosed execution should be served on Mr. Delphia at his restaurant in Waterbury. If he refuses to pay this, please satisfy this from the receipts in the cash register in the restaurant.
Any breach or neglect of defendant's duty must be measured against this instruction.
The trial court found:
(I)t was the legal duty of said defendants to either levy upon such goods, chattels and lands of the debtor as they could find or levy upon the cash in the cash register at the debtor's place of business as directed by the attorney for the Plaintiff. The defendants did neither.
This finding, however, is based upon an erroneous reading of 12 V.S.A. § 2731, which requires that the levy of execution when not paid by the debtor shall be made by the constable either "upon the goods or chattels of the debtor Or such as are shown him by the creditor." (Emphasis added).
Where a judgment creditor informs the levying officer of the existence and location of assets known to the creditor and gives him no further instructions, the officer must levy either upon those assets or upon others. However, where, as here, the creditor gives the levying officer specific instructions concerning the manner of levy and the items to be seized, the duty placed upon the levying officer is quite different.
The party at whose instance a writ or execution has issued, or his attorney, has the right to give the officer directions as to how they shall be executed, which directions, when not in conflict with the law, the officer is bound to follow. The officer, in such case, is not bound to serve the writ in any other manner than according to directions given him. When, however, a party assumes to give special instructions to an officer in regard to the execution of process in his hands, different from his legal duty, the officer ceases to be a public officer, as to the business so entrusted to him, and becomes a private agent.
Gross v. Gates, 109 Vt. 156, 162, 194 A. 465, 468-69 (1937) (citations omitted). The defendant Pierce had a duty to levy only pursuant to the foregoing instructions, which specifically direct that levy be made, after demand, on the cash register receipts at Lee's Restaurant.
Mandamus is an appropriate remedy to require the person to whom it is directed to perform some act which the law enjoins as a duty as long as it is a purely ministerial act. Bloomer v. Cheney, 131 Vt. 552, 553, 311 A.2d 101, 102 (1973). In order...
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Vitale v. Hotel California, Inc.
...N.J.L. 162, n. 1, 67 A. 75, and infrequently reported elsewhere, a Vermont court recently decided such a case, Dowlings, Inc. v. Mayo, 137 Vt. 548, 409 A.2d 588 (Sup.Ct.1979). The chronology of events is as follows: Vitale obtained a final judgment against California in the amount of $6,317......
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...case because there is no clear right to relief, and because the duties involved are not purely ministerial. Dowlings, Inc. v. Mayo, 137 Vt. 548, 551-52, 409 A.2d 588, 590 (1979). Second, the Commissioner has not refused to act in accordance with his duties, but has in fact performed the fun......
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...three months after the May 13 judgment order, and as such waived his right to request permission to appeal. See Dowlings, Inc. v. Mayo, 137 Vt. 548, 550, 409 A.2d 588, 590 (1979) (holding that failure to timely file an appeal constitutes a waiver of appeal rights). Therefore, we must dismis......
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