Williams v. Matthews, 931690
| Decision Date | 16 September 1994 |
| Docket Number | No. 931690,931690 |
| Citation | 248 Va. 277,448 S.E.2d 625 |
| Court | Virginia Supreme Court |
| Parties | Clarence G. WILLIAMS, Sheriff of Chesterfield County v. D. Brock MATTHEWS. Record |
Steven L. Micas, County Atty. (Jeffrey L. Mincks, Deputy County Atty., Lisa C. Dewey, Asst. County Atty., on briefs), for appellant.
D. Brock Matthews, pro se.
Present: All the Justices.
In this mandamus appeal, the dispositive question is whether Virginia's detinue statutes authorize and require a sheriff to break and enter a dwelling house, without the occupant's permission, for the purpose of seizing personal property pretrial, in execution of a court order entered ex parte in accord with such statutes.
Code § 8.01-114 governs proceedings in detinue to recover personal property unlawfully withheld from a plaintiff and requires a petition to be filed for pretrial seizure. Such petition shall describe "the kind, quantity and estimated fair market value of the specific personal property as to which plaintiff seeks possession;" the particular basis of the plaintiff's claim; and, specific facts to support the ground or grounds that require prompt action to recover the property.
The statute further provides that, upon filing of the petition, a judge or magistrate "may issue an order ... directed to the sheriff ... commanding him to seize the property ... and deliver same to the plaintiff pendente lite...." Code § 8.01-114(A)(3). The statute also provides that the "judge or magistrate may issue such an order ... in accordance with the prayer of the petition after an ex parte review of the petition" only upon a determination that the petition is in proper form and that "there is reasonable cause to believe that the grounds for detinue seizure described in the petition exist." Code § 8.01-114(B).
The statute further provides that the judicial officer may receive evidence only in the form of a sworn petition filed with the papers in the case, Code § 8.01-114(C), and that the "order commanding the seizure of property" shall be served with a form for requesting a hearing on a claim of exemption from seizure, Code § 8.01-114(D).
Code § 8.01-115 provides that no such order shall be issued until a bond is posted in a penalty at least double the estimated fair market value of the property claimed, with a condition to redeliver the seized property to the defendant if the right to the possession shall be adjudged against the plaintiff. Code § 8.01-116 provides a procedure for return of the property to the defendant upon execution of a bond. Code § 8.01-119 establishes a procedure for a prompt hearing to review the issuance of the pretrial order, and Code § 8.01-121 provides for entry of final judgment in the detinue proceeding and for disposition of the property or proceeds according to the rights of the parties.
In the present case, appellee D. Brock Matthews filed a petition for a writ of mandamus against appellant Clarence G. Williams, Sheriff of Chesterfield County, asserting that defendant "has repeatedly and continuously refused to execute Detinue Seizure Orders" entered by judges of general district courts and magistrates, "thereby defeating the legislative mandate and ignoring Court orders." Matthews, an attorney representing certain creditors, alleged that defendant "has caused the loss of undeterminable quantities of property belonging to various plaintiffs" and that the refusal to execute the court orders has caused loss of bond premiums paid as required by Code § 8.01-115. The attorney asked the trial court to enter a writ of mandamus directed to the Sheriff "compelling him to execute Detinue Seizure Orders."
Responding, the Sheriff denied that he has defeated the legislative mandate or has ignored court orders. Instead, he asserted, he has diligently attempted to execute all detinue seizure orders but "he is not authorized to break and enter an individual's premises to recover the property without said individual's permission." Further, the Sheriff denied that Matthews was entitled to the relief sought.
The trial court conducted an evidentiary hearing on the mandamus petition at which both parties testified. Matthews represents clients that offer consumer goods on a "rent-to-own" basis. Such clients lease televisions, refrigerators, and other articles to consumers and apply some portion of the rental payment to the ultimate purchase price of the article. If the lessee fails to comply with the terms of the rental agreement, and there is evidence that the property will be destroyed, sold, or otherwise disposed of so as to be unavailable when there is a final judgment respecting it, Matthews, on behalf of his client, will seek a seizure order prior to the trial of the underlying proceeding in detinue.
During his testimony, Matthews presented as evidence several detinue seizure orders, with supporting court papers, entered by judges of general district courts. The orders, directed "To The Sheriff," state: "You are commanded to seize (levy and take into possession) the items listed on attached Detinue Seizure Petition, deliver the same to the Plaintiff(s), and make your return on the reverse side of this Order." Each order, entered without notice to the defendant, contains defendant's name and address and a summons to appear before the court for a hearing on the date and at the time set forth in the order.
Stating that he seeks a writ of mandamus requiring the Sheriff "to forcibly enter residences in order to execute pre-judgment detinue seizure orders," Matthews testified that the Sheriff has refused to enter premises without permission even though Matthews has offered to provide the Sheriff with the services of a locksmith to assist in the entry. Matthews also testified "that in the majority of cases, the property which is the subject of the pre-judgment detinue seizure order is not recovered."
The Sheriff testified that "his office executes every detinue seizure order by attempting to levy on the property and by serving the debtor with the proper papers." He said that if the debtor refuses entry, he will not break into the debtor's home or any other premises to recover property and that he refuses to use a locksmith for the purpose. The Sheriff maintained that neither the applicable statutes nor the detinue seizure order authorizes or requires him "to break into the debtor's home to recover property."
The Sheriff testified that no showing of probable cause is required for issuance of the seizure order; the order does not provide the location of the property but only provides the debtor's address. The Sheriff stated he is unable to verify that the property subject to the seizure order is located at the debtor's address. He maintained that "in the majority of cases the property subject to the prejudgment detinue seizure order is recovered."
Following the hearing, the trial court granted Matthews' petition. Observing that pretrial detinue seizure orders issued by judges and magistrates are based on "reasonable cause," the court ruled that a forced entry by a sheriff pursuant to such an order does not constitute "an illegal breaking and entry in violation of any statutory or constitutional rights of a prejudgment debtor." The court further decided that the Sheriff's failure "to force entry into a premises where personal property is located subject to a detinue seizure order effectively undermines the statutory scheme for prejudgment levies and attachments."
Thus, the trial court issued a writ of mandamus directing the Sheriff "to use due diligence and reasonable means to execute all validly issued detinue seizure orders and to take all appropriate action necessary to seize personal property subject to such orders to include forced entry into the premises where such property is located or believed to be located." We awarded the Sheriff an appeal from the August 1993 order.
Mandamus is an extraordinary remedy that may be used to compel a public official to perform a purely ministerial duty imposed upon...
To continue reading
Request your trial
-
In re Com.
...S.E.2d 527, 530 (2007); Hertz v. Times-World Corporation, 259 Va. 599, 607-08, 528 S.E.2d 458, 462-63 (2000); Williams v. Matthews, 248 Va. 277, 281, 448 S.E.2d 625, 627 (1994); Railroad Company v. Fugate, 206 Va. 159, 162, 142 S.E.2d 546, 548-49 (1965). We stated, over 130 years ago, "In r......
-
Blevins v. Commonwealth
...statute dealing with a related subject is significant to show the existence of a different legislative intent.” Williams v. Matthews, 248 Va. 277, 284, 448 S.E.2d 625, 629 (1994). A “ ‘comparison to other, similar statutes' ” demonstrates “ ‘that the General Assembly clearly knew how to [cr......
-
Hertz v. Times-World Corporation, Record No. 991282
...447 (quoting Richmond-Greyhound Lines, Inc. v. Davis, 200 Va. 147, 151-52, 104 S.E.2d 813, 816 (1958)). Accord Williams v. Matthews, 248 Va. 277, 281, 448 S.E.2d 625, 627 (1994); Early Used Cars, Inc. v. Province, 218 Va. 605, 609, 239 S.E.2d 98, 101 (1977); Board of Supervisors v. Hylton E......
-
Mitchem v. Counts
...their express terms. Chesapeake & O. Ry. Co. v. Kinzer, 206 Va. 175, 181, 142 S.E.2d 514, 518 (1965); see Williams v. Matthews, 248 Va. 277, 282-83, 448 S.E.2d 625, 628 (1994); Wackwitz v. Roy, 244 Va. 60, 65, 418 S.E.2d 861, 864 (1992). A statutory change in the common law is limited to th......