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Vitale v. Hotel California, Inc. - 184 N.J. Super. 512, 446 A.2d 880 (Super. Ct. 1982)

Rule:

A successful plaintiff who obtains a judgment against a defendant may cause the personal property of the defendant/judgment debtor to be seized and sold and the proceeds applied to the judgment and costs by way of execution. N.J. Stat. Ann. § 2A:17-1 et seq. To do this, plaintiff obtains a writ of execution, directing the sheriff to levy and make a return within three months after the date of issuance. N.J. Ct. R. 4:59-1(a). In addition, the officer must file a verified statement of when and how much money was collected and the balance due on execution fees or costs.

Facts:

Plaintiff David Vitale, Jr. obtained a final judgment against Hotel California, Inc. in the amount of $6,317 plus costs on August 12, 1980. A writ of execution was issued on June 23, 1981, and on July 9, William Lanzaro, the Sheriff of Monmouth County, received the same along with a cover letter from plaintiff instructing him to levy upon all monies and personal property of a bar that Hotel California, Inc. operated. After seizing $714 in assets, the sheriff refused plaintiff’s requests for additional levies, asserting that the requests were unreasonable and required an alias writ. Consequently, plaintiff brought a motion pursuant to N.J.S.A. 40A:9-109 to amerce, i.e., to hold liable, the aforementioned Sheriff.

Issue:

Would plaintiff’s motion to amerce the sheriff prosper?

Answer:

Yes.

Conclusion:

The court granted plaintiff’s motion to amerce the sheriff for failing to execute successive levies on a writ based on a judgment in the underlying action. According to the court, plaintiff had done all that was required to effect the execution, and the sheriff, in refusing to make the additional levies, breached his duty to plaintiff and caused him to lose the benefit of the writ. Consequently, the sheriff was liable for the judgment.

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