Mees v. Ereth
| Decision Date | 21 February 1991 |
| Docket Number | No. 900141,900141 |
| Parties | Lawrence and Jacqueline MEES, Plaintiffs and Appellees, v. Eleanor and Kenneth ERETH, Defendants and Appellants. Civ. |
| Court | North Dakota Supreme Court |
Zuger Law offices, Bismarck, for plaintiffs and appellees; William P. Zuger (argued).
Wheeler Wolf, Bismarck, for defendants and appellants; Jack McDonald, Jr. (argued).
Bruce B. Haskell, Asst. State's Atty., Bismarck, for Burleigh County Sheriff's Dept.; submitted on brief.
Eleanor and Kenneth Ereth appealed from a post judgment order by the district court denying their motion to direct the Burleigh County sheriff to return, as exempt, their Norwest Bank funds that he had seized by an execution levy. We reverse and remand.
Lawrence and Jacqueline Mees obtained a money judgment for $35,609.50 against the Ereths. After the clerk of the district court issued an execution on the judgment, the Meeses' attorney requested the sheriff to levy upon the Ereths' funds at Norwest Bank. A deputy sheriff served notice of the execution levy on Norwest Bank on October 4, 1989. The next day the Bank surrendered to the deputy sheriff a total of $36,253.32, including $226.97 from the Ereths' savings account, $228.09 from their checking account, $2,169.11 from their business account, and $33,629.15 from Kenneth Ereth's individual retirement account.
The deputy sheriff disbursed the seized funds to the Meeses' attorney on October 6, 1989. Later that day the deputy sheriff served notice of the levy and execution on the Ereths.
The Ereths filed a timely claim of exemptions, dated October 10, 1989, claiming that the entire amount was exempt from process. See NDCC 28-21-12, 28-22-03, and 28-22-03.1(3). The sheriff received the claim of exemptions on October 12, 1989 and informed the Ereths' attorney that the funds had been disbursed. The Ereths then moved the district court to set aside the levy and to direct the sheriff to return the funds to the Bank. The sheriff was served with this motion and the notice of a hearing on it. Following the hearing, the district court denied the motion. The Ereths appealed.
Because the sheriff was not served with a notice of the appeal, we remanded to the clerk of the district court with directions to notify the Burleigh County sheriff of the appeal, while we retained jurisdiction. Mees v. Ereth, 462 N.W.2d 161 (N.D.1990). Proof of service of the notice of appeal on the sheriff has been filed. The sheriff has filed an appellate brief. The Ereths and the Meeses have filed responsive briefs. We now decide the merits, reverse, and remand for further proceedings.
In denying the Ereths' motion to direct the sheriff to return their exempt funds to the Bank, the district court ruled:
It would appear to me that you have on behalf of your client an excellent lawsuit with about four causes of action.... But that's only an opinion that is not necessary for this court's decision on this motion.
The motion therefore is ordered denied as being outside the authority of this court to make such an order.
Thus, the district court decided that it did not have authority to consider the Ereths' motion to direct the sheriff's handling of the execution levy.
The Ereths argue that a sheriff must retain custody of property seized by him on an execution levy so that he can return the property if it is timely claimed as exempt. The Ereths also argue that their exemption rights can be enforced by the trial court that issued the execution. We agree.
In levying an execution upon personal property, the sheriff must notify the debtor that any claim of exemptions is to be made within ten days after service of the notice. NDCC 28-21-12. The debtor has ten days after service of the notice to claim exemptions. NDCC 28-22-06; Bank of Steele v. Lang, 441 N.W.2d 648 (N.D.1989). All property of the judgment debtor "not exempt by law" is subject to execution, but the sheriff may elect not to seize property during the time that the debtor may claim exemptions. NDCC 28-21-08. When a debtor claims exempt property, the sheriff is empowered to retain the property in his possession pending a determination of whether it qualifies for the exemption. Dakota National Bank of Fargo v. Salzwedel, 71 N.D. 643, 3 N.W.2d 468 (1942). For exemptions to be effective, the sheriff must hold the seized property until the exemptions are properly determined.
It is generally recognized that "[a] debtor's rights to exemptions are carefully guarded under the law, and those who participate in the wrongful seizure of exempt property are responsible therefor." 70 Am.Jur.2d Sheriffs, Police, and Constables Sec. 107 (1987). A...
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Lang v. Barrios
...bring the highest price." Thus, our statute provides protection to the execution debtor's rights in levied property. Cf. Mees v. Ereth, 466 N.W.2d 135, 136 (N.D.1991) [sheriff must recognize debtor's right to exempt Lang had a right to have his personal property sold in accordance with the ......
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Mees v. Ereth, 920081
...their prior appeal. The undisputed factual history of this case is explained in two prior related appeals before this court, Mees v. Ereth, 466 N.W.2d 135 (N.D.1991), and Mees v. Ereth, 462 N.W.2d 161 (N.D.1990). Those facts will not be repeated here, except where necessary for an understan......