January 13, 1977
Subject:
Executions; Sheriffs; Service of Writ of Execution for Delivery of Specific Property; G.S. 1-313(4); Clarification of 42 N.C.A.G. 312 (1973)
Requested By:
Mr. C. E. Drum, Jr. Deputy Sheriff Forsyth County
Questions:
- (1)
- Does the office serving a writ of execution for delivery of specific property have to ask the judgment debtor’s permission before levying on his personal property?
- (2)
- Does the officer serving a writ of execution have authority to break into or forcibly enter a dwelling in order to levy on personal property of the judgment debtor?
- (3)
- What then does the officer do if personal service of the writ of execution is made on the judgment debtor and he refuses to surrender possession of the property?
Conclusions:
- (1)
- No.
- (2)
- No.
- (3)
- Inform the judgment debtor that a writ of execution is deemed the process of the court and that willful disobedience or resistance to a lawfully issued order or process of any court may subject the debtor to punishment for contempt.
Writ of execution authorizes the sheriff or other officer to do what the writ commands. The officer is not required thereby to ask the judgment debtor’s permission before levying on his or her personal property.
In State v. Whitaker, 107 NC 803, 12 SE 456 (1890), the North Carolina Supreme Court held, however, that an officer cannot break open an outer door or window of a dwelling against the consent of the owner for the purpose of making a levy on the goods of the owner. Thus, if the judgment debtor refuses the officer entrance to his dwelling or forcibly resists the officer’s attempts to carry out the commands of the writ, the officer cannot use force in order to obtain possession of the debtor’s personal property.
The officer can and should inform the judgment debtor who refuses to surrender possession of his property that a writ of execution is "deemed the process of the court" (G.S. 1-303) and that any person guilty of "willful disobedience of any process or order lawfully issued by any court" or of "resistance willfully offered . . . to the lawful order or process of any court" may be punished for contempt (G.S. 5-1).
Rufus L. Edmisten Attorney General
Rebecca R. Bevacqua Associate Attorney