Red House Furniture Co. v. Smith, 8218DC945

• Citation: 306 S.E.2d 130,63 N.C.App. 769
• Decision Date: 06 September 1983
• Docket Number: No. 8218DC945,8218DC945
• Parties: RED HOUSE FURNITURE CO. v. Annie SMITH.
• Court: North Carolina Court of Appeals

Page 130

306 S.E.2d 130

63 N.C.App. 769

RED HOUSE FURNITURE CO. v. Annie SMITH.

No. 8218DC945.

Court of Appeals of North Carolina.

Sept. 6, 1983.

Gregory L. Gorham, Greensboro, for Paul H. Gibson, Sheriff of Guilford County, appellant.

Rossie G. Gardner, High Point, for plaintiff-appellee.

JOHNSON, Judge.

Sheriff Gibson contends that the court erred in concluding that he, through his deputy, failed to take possession of the property described in the writ of possession and deliver it to the court and otherwise failed to execute the writ and that he had failed to show any defense as to why the judgment nisi should not be made absolute. Relying upon State v. Whitaker, 107 N.C. 802, 12 S.E. 456 (1890) and State v. Armfield, 9 N.C. 246 (1822), which hold that an officer may not break and enter a building against the consent of the owner for the purpose of making a levy on the goods of the owner, he argues that his deputy acted lawfully and reasonably in not attempting to use force to recover the property. He did all that was required of him since he had no alternative except to return the writ without having recovered the property.

G.S. 162-14 provides, in pertinent part, that a sheriff shall be subject to a penalty of forfeiting one hundred dollars ($100.00) for his failure to execute and make due return of all writs and other process to him legally issued and directed, unless he can show sufficient cause to the court at the next succeeding session after judgment nisi has been entered against him. The penalty is given to the party aggrieved "chiefly as a punishment to the officer, and to stimulate him to active obedience." Richardson v. Wicker, 80 N.C. 172, 174 (1879). The statute imposes no undue hardship upon sheriffs. Produce Co. v. Stanley, 267 N.C. 608, 148 S.E.2d 689 (1966).

Few cases involving amercement of sheriffs have been reported in this century, although amercement was a frequent occurrence in years past. Produce Co. v. Stanley, supra. These cases make it clear, however, that the sheriff must be diligent in both the execution and return of process or suffer the penalty. Rollins v. Gibson, 293 N.C. 73, 235 S.E.2d 159 (1977). The courts have no "dispensing power" to relieve a sheriff from the penalty imposed by G.S. 162-14. Swain v. Phelps, 125 N.C. 43, 34 S.E. 110 (1899).

The Superior Court of New Jersey faced the issue of whether a sheriff reasonably neglected or failed to execute a writ of execution out of fear of violence in Vitale v. Hotel California, Inc., 184 N.J.Super. 512, 446 A.2d 880, aff'd., 187 N.J.Super. 464, 455 A.2d 508 (1982). Plaintiff there obtained a judgment and the issuance of a writ of execution instructing the sheriff to levy upon all monies and personal property at a bar defendant held the liquor license for. When the sheriff, through his deputy, went to the bar to execute the writ, he was denied access by the bar's bouncers. Fearing violence might ensue, the officer left. The court held that the fear of violence was insufficient to justify not making the levy. There was nothing in the record to show any danger of imminent harm to the officer.

Similarly, there...