No. 84-116 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

MICHAEL IRVING FOLEY and CHERYL 

DENISE FOLEY, 

Plaintiffs and Appellants, 

AUDIT SERVICES, INC., a Montana 

Corporation, 

Defendants and Respondents. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Henry Loble, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Harrison, Yeshe & Thweatt, Harold H. Harrison argued, 

Helena, Montana 

For Respondent: 

Swanberg, Koby, Swanberg & Matteucci; Robert J. 

Vermillion argued, Great Falls, Montana 

Submitted: October 30, 1984 

Decided: January 3, 1985 

Filed: JA!~ j 1985 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Plaintiffs Michael Irving Foley and Cheryl Denise Foley 

filed this action against defendant Audit Services for wrongful execution and conversion. Plaintiffs' bank account was 

levied upon under a writ of execution obtained by Audit 

Services. Plaintiffs were strangers to the action from which 

the writ issued against the judgment debtor, Mike Foley. 

Plaintiffs seek actual and punitive damages. The Lewis and 

Clark County District Court granted summary judgment in favor 

of Audit Services and plaintiffs appeal. We affirm. 

The issues are: 

1. Did the the District Court err in concluding that the 

judgment creditor, Audit Services, did not direct the wrongful levy of execution against plaintiffs? 

2. Did the District Court err in concl.uding there is no 

genuine issue of material fact regarding malice? 

Audit Services obtained a judgment in 1981 against one 

"Mike Foley" in Jefferson County. On September 7, 1983 

counsel for Audit Services obtained a writ of execution from 

the Jefferson County District Court pursuant to the 1981 

judgment. The writ and praecipe were addressed to the Lewis 

and Clark County Sheriff and were mailed to the sheriff by 

counsel for Audit Services on September 8, 1983. The praecipe requested the sheriff to levy on all monies, credits or 

debts due and owing to Mike Foley in possession or control of 

certain listed banks or Mike Foley's employer. 

On September 16, 1983 the sheriff served the writ of 

execution on the establishments listed in the praecipe. 

First Security Bank debited plaintiffs ' account for $51.74, 

the entire account balance. The record is silent regarding 

how or why the bank allowed levy against "Mike Foley" on an 

account named "Michael Irving Foley and Cheryl Denise Fol~y." 
None of the other entities delivered any assets to the 

sheriff. 

Audit Services contends that no one connected with Audit 

Services was informed of anything nor communicated with the 

sheriff regarding the writ of execution from the time it was 

sent to the sheriff until Audit Services was served with the 

complaint in this action on September 28, 1983. Further, 

when Audit Services learned that the levy had been attempted, 

it requested that the sheriff release any funds received as a 

result of the levy. Plaintiffs do not dispute these 

contentions. 

On September 26, 1983 plaintiffs filed a two-count 

verified complaint against Audit Services. The second count, 

requesting injunctive relief, was resolved by stipulation of 

the parties and is not a subject of this appeal. 

The first count of the complaint alleged wrongful execution, conversion, abuse of process and invasion of privacy. 

The complaint further alleged that as a result of defendant's 

actions, plaintiffs suffered embarrassment, humiliation, 

mental anguish and damage to their reputation. The complaint 

alleged that defendant's conduct was outrageous, accompanied 

by oppression, fraud and malice, and entitles plaintiffs to 

exemplary damages. 

On October 14, 1983 Audit Services made a combined 

motion to dismiss or for summary judgment. Plaintiffs opposed the motion and moved for summary judgment, but filed no 

affidavits, electing to rely solely on the allegations of 

their verified complaint. 

On January 20, 1984 the District Court issued an order 

granting summary judgment in favor of Audit Services and 

denying plaintiffs' motion. The District Court found there 

were no material fact issues; that under Rule 56 (e) , 
M.R.Civ.P., plaintiffs were not entitled to rely upon the 

allegations of their complaint; that defendant was not liable 

for wrongful execution because it did not advise, direct or 

assist in commission of the wrongful execution, but had 

merely obtained a writ of execution and sent it to the sheriff. Plaintiffs appeal. 

I 

Did the District Court err in concluding that defendant 

did not direct the wrongful levy of execution against 

plaintiffs? 

Plaintiffs do not dispute the general rule of law relied 

upon by the District Court, that an execution creditor who 

advises, directs or assists in a wrongful execution is liable. However, they contend it was erroneously applied by the 

District Court. Plaintiffs argue that by obtaining the writ 

and sending it and the praecipe to the sheriff, Audit Services "directed" the wrongful execution within the meaning of 

the general rule. They contend case law supports a finding 

of liability on these facts. Thus, they argue, the court 

erred in granting summary judgment for Audit Services. 

Defendant emphasizes the general rule relied upon by the 

District Court, noting that a creditor who obtains a writ of 

execution presumes no unauthorized action will be taken and 

is not liable unless he assists, advises, or participates 

directly in the wrongful aspect of the execution, or subsequently ratifies the sheriff's actions. Audit Services 

argues it did not "direct" the wrongful execution within the 

meaning of the rule. 

We conclude that the District Court correctly applied 

the general rule regarding wrongful execution. The rule 

states: 
"The liability of an execution creditor for a 

wrongful levy or sale under an execution does not 

rest on his causing the writ to be issued and 

delivered to an officer, but rests on his direction 

or ratification, or assistance or participation in 

the commission, of the wrongful act or on his 

authorization of directions or instructions given 

by his attorney. 

"When [the judgment creditor] places his execution 

in the hands of an officer for service, he is 

presumed to intend that no action shall be taken 

thereunder not authorized by the terms of the writ, 

and, in the absence of ratification, he will not be 

liable for a wrongful execution of the writ unless 

he ordered or directed the officer or participated 

directly or otherwise than by merely causing the 

issuance of the process and the delivery of it to 

the officer. However, if it is shown that the 

execution creditor advised, directed or assisted 

in, the commission of the unlawful act he will be 

1iabl.e with the officer for the injury sustained." 

33 C.J.S. Executions section 456 (b) (2). 

Here, the record is completely devoid of facts suggesting that Audit Services in any way participated in or directed the wrongful execution on plaintiffs' bank account. Audit 

Services lawfully obtained a writ of execution directed 

against assets of "Mike Foley." Contrary to the directions 

in the writ of execution and praecipe, levy was made on an 

account in the names of Michael Irving Foley and Cheryl 

Denise Fol-ey. The wrongful levy of execution was made without any direction or participation by Audit Services. 

Ca-se law supports the critical distinction between 

merely obtaining the writ and giving it to the sheriff on the 

one hand, and actively directing or participating in the 

wrongful execution on the other hand. Liability is generally 

premised upon direct participation, such as advising the 

sheriff to seize certain assets not belonging to the judgment 

debtor or ratification of the sheriff's wrongful acts. See, 

e.g., Mica Industries, Ine. v. Penland (N.C. 19591, 107 

S.E.2d 120; Pinkston v. Wills (Tex. 1947), 200 s.w.2d 843. 

None of these elements a.re present here. 
Plaintiffs nonetheless argue that Audit Services 

"directed" the wrongful execution here by merely obtaining 

the writ and sending it to the sheriff, thereby initiating 

the process whereby plaintiffs were harmed. In Schaub v. 

Welfare Finance Corporation (Ohio 1939) , 29 N.E.2d 223, the 

creditor of the husband obtained a writ and delivered it to 

the sheriff, who levied on the wife1 s property. Under Ohio 

law, her property could not be seized to satisfy her husband's debt. The appellate court reversed the trial court's 

entry of a directed verdict in the creditor's favor. However, in Schaub, the creditor's attorney told the sheriff to 

levy on specific property whicli belonged to the wife. 29 

N. E. 2d at 224. Schaub is therefore factually distinguishable 

from the present case. Moreover, as the general rule regarding wrongful execution liability provides, liability does not 

rest on merely causing the writ to be issued and delivered to 

an officer. 

We hold the District Court correctly concluded that 

defendant Audit Services did not direct the the wrongful levy 

of execution against plaintiffs. 

PI-aintiffs also argue that Audit Services is liable 

under a conversion theory through an agency rel-ationship with 

the sheriff. We disagree. A sheriff is not a cred.itorf s

agent with respect to unlawful acts. 70 Am. Jur. 2d sheriffs, 

Pol-ice, and Constables section 1. Moreover, if the creditor 

authorized the unlawful act, the creditor would be liable in 

its own capacity for wrongful execution. 

We hold that the District Court properly granted summary 

judgment in favor of Audit Services on the issue of liability 

for wrongful execution on plaintiffs1 bank account. 

Having concluded that the District Court properly granted summary judgment on the liablity issue, we find it 
unnecessary to address the second issue regarding plaintiffs' 

punitive damages claim. 

The District Court's jud.gment is affirmed. 

We concur: