Justice Minton Decision Comparing Old Practice Code to KRS – Enforcement of Judgment

Wade v. Poma Glass & Specialty Windows, Inc. (Ky., 2012)

Wade v. Poma Glass & Specialty Windows, Inc. (Ky., 2012) 2010-SC-000572-DG December 20, 2012
Because the term execution is subject to various interpretations, which in turn change the application of KRS 413.090(1), we must look beyond the text of the statute to the statutory scheme concerning actions on judgments and to relevant case law.

B. The Enforcement of Judgments in the Old Civil Code of Practice.
Before the current statutory scheme for the enforcement of judgments found in the Kentucky Revised Statutes, the Civil Code of Practice provided for attachments, writs of execution, and equitable actions under Section 439. “‘Attachment’ is a legal process which seizes and holds the property of the defendant until the rights of the parties are determined in the principal suit.” At or after commencing an action, a plaintiff could seek a writ of attachment against the defendant’s property as security for the satisfaction of the judgment the plaintiff might recover. The plaintiff could also pursue an attachment on the defendant’s property being held by third parties, known as garnishees. After a court rendered a judgment in their favor, plaintiffs could seek attachments against the judgment debtor and garnishees only in connection with a suit filed under Section 439 of the Civil Code.

The relevant text of KRS 413.090(1) dates back to 1852. At that time, the Civil Code of Practice of Kentucky was in effect, rather than the Kentucky Revised Statutes. The Civil Code used the term execution, and various forms of the word, in both the narrow and broad sense. The 1876 Civil Code repeatedly referred to executing various types of writs, other than writs of execution. For example, Section 203 of the Civil Code delineated the situations in which an “order of attachment shall be executed.” On the other hand, Section 212 of the Civil Code used execution to mean a writ of execution: “An attachment binds the defendant’s property . . . in the same manner as an execution would bind it.”
So even as early as 1876 the meaning of the term execution in the statute of limitations for actions on judgments was ambiguous. And its meaning has been litigated in Kentucky courts. This Court’s predecessor held that writs of execution and actions under Section 439 of the Civil Code toll the fifteen-year statute of limitations on the enforcement of judgments.

Slaughter and Thierman are instructive on the definition of execution. The purpose of the statute of limitations was to save “the right of the judgment creditor for [fifteen] years within which to enforce the collection of his judgment.” In Thierman and Slaughter, the Court did not limit the definition of execution in the statute of limitations to a writ of execution. On the contrary, the Court recognized that by enforcing a judgment after it was rendered through either a writ of execution or an action under Section 439 of the Civil Code, the judgment creditor tolls the statute of limitations. This supports the conclusion that execution should be defined broadly in KRS 413.090(1).

We hold that in the fifteen-year statute of limitations for actions on judgments, the term execution is defined as an act of enforcing, carrying out, or putting into effect a judgment.

Leave a Comment:

*