Section 1.2 "Execution" and "Levy"

• Library: Creditors' Remedies (2009 Ed. + 2014 Supp)

B. (§1.2) "Execution" and "Levy"

It is important to keep the distinction between "execution" and "levy" in mind. Execution is the "process by which the judgment of the court is enforced." Weniger v. Weniger, 32 S.W.2d 775, 776 (Mo. App. E.D. 1930); Smith v. Rogers, 90 S.W. 1150, 1152 (Mo. 1905); State ex rel. Heckel v. Klein, 39 S.W. 272, 274 (Mo. banc 1897). When used in connection with the enforcement of a judgment, a levy is the "actual seizure of property by the officer charged with the execution of the writ." Hobbs v. Williams, 162 S.W. 334, 335 (Mo. App. W.D. 1913); Butler v. Imhoff, 142 S.W. 287, 290 (Mo. 1911). This definition is codified at § 513.010.1, RSMo 2000.

In Coonts v. Potts, 316 F.3d 745 (8^th Cir. 2003), the Eighth Circuit held that, under Missouri law, and specifically Rule 76.01, an issuance of a writ of execution does not require a court order. The Eighth Circuit noted that "the judgment acts as the judge's ‘signature' on the writ of execution, and the clerk's purely ministerial act of issuing the writ merely effectuates the court's judgment." Id. at 751 n.4.

Rule 76.06 defines how levies are made. To constitute a levy, the officer must take such manual possession of the property as is practical under the circumstances, asserting...