Colorado § 13-52-111 - Return - endorsement - entry.

§ 13-52-111. Return - endorsement - entry.

All executions shall be made returnable ninety days after date, and no writ of execution shall bind the personal property, goods, or chattels of any person against whom such writ is issued until the writ is delivered to the sheriff or other officer for execution. For a better manifestation of the time, the sheriff or other officer, on receipt of every such writ, shall endorse upon the back thereof the hour, day of the month, and the year when the same was received by him and shall immediately enter the receipt of said writ and the time of receiving it in a book to be kept for that purpose at the office of the sheriff. Said book shall be a public record and open to the inspection of the public. The execution shall be returned within ninety days from date of issue, unless sale is pending under levy made.

Source: R.S. p. 371, § 8. G.L. § 1414. G.S. § 1846. L. 03: p. 219, § 1. R.S. 08: § 3626. C.L. 5913. CSA: C. 93, § 12. CRS 53: § 77-1-12. C.R.S. 1963: § 77-1-12.

ANNOTATION

Law reviews. For article, "Executions and Levies on Tangible Property", see 27 Dicta 143 (1950).

Execution lien attaches upon receipt of execution by sheriff. It has been held repeatedly that under this section an execution lien upon the personal property of the debtor attaches upon receipt of the execution by the sheriff. Williams v. Mellor, 12 Colo. 1, 19 P. 839 (1888); Joslin v. Spangler, 13 Colo. 491, 22 P. 804 (1889); Ankele v. Elder, 19 Colo. App. 330, 75 P. 29 (1904); Lewin v. Telluride Iron Works Co., 272 F. 590 (8th Cir. 1921); First Nat'l Bank v. Monte Vista Hdwe. Co., 75 Colo. 440, 226 P. 154 (1924); First State Bank v. Fox, 10 F.2d 116 (8th Cir. 1925).

Such liens are entitled to priority in accordance with the respective dates of their delivery. Joslin v. Spangler, 13 Colo. 491, 22 P. 804 (1889).

The lien thus created is not a secret lien, for the statute requires the sheriff, upon receipt of the writ, to indorse thereon, and to enter in a book kept for that purpose in his office, the exact time when the writ was received. Robinson v. Wright, 90 Colo. 419, P.2d 618 (1932).

Executions are returnable without reference to any term of court. The practice of returning the execution in term time has been changed by this section. Executions are made returnable within 90 days from date, without reference to any term of court. Brown v. People, 3 Colo. 115 (1876).

Executions may be returned prior to expiration of 90-day period. While it may be true that, in his discretion, the sheriff may take upon himself the responsibility of returning it at an earlier date, the fact that he does so, and that, too, at the request of defendant's counsel, is a circumstance which the court or judge may rightfully consider in determining the question whether all legal means have been exhausted to recover the fine and costs, when an application is made for the prisoner's discharge on the ground of the insufficiency of his estate wherewith to pay them. Tate v. People, 25 Colo. 335, 53 P. 1050 (1898).

When sheriff delays in serving execution by directions of creditor, lien is delayed. If because of any direction by, or of any understanding with, the execution creditor, the sheriff delays making a levy upon the debtor's property, the lien is held to be waived during the period of such delay. Williams v. Mellor, 12 Colo. 1, 19 P. 839 (1888); Lewin v. Telluride Iron Works Co., 272 F. 590 (8th Cir. 1921); Robinson v. Wright, 90 Colo. 417, 9 P.2d 618 (1932).

Unreasonable delay is presumed to be by creditor's direction. Where the sheriff delays an unreasonable time to make a levy, it is presumed, in the absence of an explanation for such delay, that the delay was caused by direction of the execution creditor. Robinson v. Wright, 90 Colo. 417, 9 P.2d 618 (1932).

Where there is no evidence of such instructions, it is error to submit the question to the jury. Where there is no evidence of instructions, or of an understanding on delivery of an execution to the sheriff, that a levy should be delayed, except the omission to make a levy for 20 days, and the testimony of the execution debtor to propositions for further time, which were not accepted, it is error, in replevin by mortgagees for goods levied on under the execution, to submit to the jury the question whether there were such instructions or understanding. Williams v. Mellor, 12 Colo. 1, 19 P. 839 (1888).

For when circumstances reasonably explain the delay in making the levy, see Robinson v. Wright, 90 Colo. 417, 9 P.2d 618 (1932).

Action for false return on execution. In an action against a sheriff and the sureties on his official bond for damages sustained by plaintiff by reason of an alleged false return upon an execution, a demurrer should be sustained to a defense which shows upon its face that it involves a contradiction of the sheriff's return upon the execution, as evidence would not be admissible to support such defense. People ex rel. Kenfield v. Finch, 19 Colo. App. 512, 76 P. 1120 (1904).

A lost execution's day of receipt may be shown by the sheriff's fee book when the sheriff is dead. Bruns v. Clase, 9 Colo. 225, 11 P. 79 (1886).

Applied in In re Harms, 7 B.R. 398 (Bankr. D. Colo. 1980).

ARTICLE 53

Uniform Enforcement of Foreign Judgments

13-53-101. Short title.

13-53-102. Definitions.

13-53-103. Filing and status of foreign judgments.

13-53-104. Notice of filing.

13-53-105. Stay.

13-53-106. Fees.

13-53-107. Optional procedure.

13-53-108. Uniformity of interpretation.