AAC F A M I L Y & F R I E N D S » » » » » » » » » » » » » » » » » » » » » » » » » » » » » » » » » » » » » » » Senate President Pro Tempore Michael Lamoureux discusses lobbying at AAC
Senator Michael Lamoureux (R, District 16) of Russellville, President Pro Tempore of the Senate, talks about the 89th General Session of the Arkansas General Assembly at the Association of Arkansas Counties building. Lamoureux talked about this legislature in general and provided some insight about lobbying state representatives and senators.
Civil process
another county; and the personal property of the debtor may be spread out over various locations known and unknown. Other states such as Alabama, Texas and Mississippi have either a
court determined time period of 90 days or longer for writs of execution. A.C.A. 16-66-416 needs to be amended to allow 90 days for return of a writ of execution. Rep. Nate Steel of Nashville has filed a bill on behalf of the Arkan-
sas Sheriffs Association (ASA) and AAC, HB 1324, seeking to amend A.C.A. 16-66-118 to insert the word “willful” to make consistent with current law as per AG Opinion 2007-228 and clear that personal li- ability has requisite elements of willful refusal or neglect; and to amend A.C.A. 16-66-416 to extend the time for returning a writ of execution from 60 days to 90 days. A.C.A. 21-6-307 likewise needs legislative clarification. Civil lawyers should easily confirm the long-standing custom and practice that fees the office of sheriff for civil process are paid up front. However, the code does not clearly provide for payment up front. For example, civil attor- neys know readily that the costs of having a summons served by a sheriff deputy and proof of service filed by the deputy with the circuit clerk is payable and due to the sheriff concurrent with delivery of the summons issued for service to the sheriff civil process office. However, payment for serving a summons under the code is recited as $30 and the payment due for return of service (which is return of the summons with proof of service or failure to locate defendant for service filed with the circuit clerk) is a separate charge of $20. Te duty to return service in either event, as proof of service or failure to locate, is mandatory; and payment is not delayed until return of service is made. Tis is likewise true of other civil processes, services and returns of writs of execution, writs of garnishment, subpoenas, court orders, etc. AG Opinion No. 2012-088 confirms this axiomatic view. Rep. Jeremy Gillam will file a bill on behalf of the ASA and AAC seeking to clarify the up-front payment of the aggregate fees for civil process. In respect to writs of executions issued from district court following the adoption of Amendment 80, in AG Opinion No. 2011-143: He deter-
38
Continued From Page 18 <<<
mined that district courts and district court clerks are authorized to issue writs of execution to enforce its own judgments; district courts are courts of record; and the court that issued a judgment in a county is the proper court to issue a writ of execution. A.C.A. 16-66-109 provides that executions issued upon any judgment
rendered in any court of record may be directed to and executed in any county in this state without first procuring an order of the court for that purpose. However, no judgment is a lien on land owned by the defendant in a county other than the county in which the judgment is rendered un- til a certified copy of the judgment is filed with the circuit clerk in which the land is situated pursuant to A.C.A. 16-65-117(b)(1). Te recorded and indexed judgment shall constitute a lien upon the
lands from the date it is recorded for a period of (10) ten years (and for an additional (10) ten years if revived) and notice to all persons which do not have actual notice of the rendition of the judgment. Finally, we frequently are asked if attorneys are required to provide help to find assets of the defendant judgment debtor? In AG Opinions 1991-279; and 1991-357: it was stated that A.C.A. 16-66-104 provides a form that “may be” used for a writ of execution in Arkansas. However, the AG concluded that the law does not require the form to be used. Likewise, the AG opined that the requirement of filing a schedule of personal and real property under A.C.A. 16-66-221 within 45 days of entry of the judgment does not make a description of specific property on the writ of execution essential to the writ. Te AG went on to say the judgment debtor has the option of describing specific property to be levied upon to facilitate the writ. Te AG reached the same conclu- sion in respect to certificates of indebtedness issued by the Department of Finance and Administration. Te laws on writs of executions are in need of clarification and mod- ernization. Te duty of sheriffs and their deputies in this area of law are tasking and require good communication with the attorneys for the judg- ment creditor. Te AAC is here to help navigate and improve the laws and thereby improve county government.
COUNTY LINES, WINTER 2013
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60