January 22, 1979
Subject:
Sheriff; Execution; Duty of Sheriff to Discover Property of Judgment Debtor.
Requested By:
Sheriff Lewis C. Rosser Lillington, N.C. 27546
Question:
What is the duty of the Sheriff in finding property of the judgment debtor for the purpose of execution of judgment?
Conclusion:
The sheriff is required to exercise due diligence to locate property of the judgment debtor. He should make such search and inquiry as a reasonable man would exercise in conduct of his own affairs to find property of the debtor, taking into consideration the other duties of the Sheriff and his Deputies.
In Parks v. Alexander, 29 NC 412, the sheriff had made a return of "no property" on an execution without making an effort to find any property or making any demand for payment or inquiry for property.
The Court held that the sheriff could not rely upon a general report that the debtor was insolvent. That it was the duty of the sheriff to go to the debtor’s house in search of property to levy on; that he should make demand for payment and inquiry for property. The Court stated: "We may be very certain that if the debt had been the sheriff’s own, he would have made inquiries which would have led to the seizure and sale of the debtor’s property." 29 N.C. at 414.
The general rule is that the sheriff must exercise due diligence to locate the debtor’s property.
Due diligence means reasonable diligence, such as a prudent man would exercise in the conduct of his own affairs to protect his own rights and interest. That which is reasonable under the circumstances. Due diligence is not measured by any absolute standard, but depends on the relative facts of each case and the other duties of the Sheriff and his Deputies may be taken into account. Black’s Law Dictionary, 3d Ed.; 80 C.J.S., Sheriffs and Constables, Sec. 44, Sec. 45; 157 ALR 196, 204.
Rufus L. Edmisten Attorney General
James F. Bullock Senior Deputy Attorney General