WVC 38 -
CHAPTER 38. LIENS.
WVC 38 - 5 -
ARTICLE 5. PROCEEDINGS IN AID OF EXECUTION; INTERROGATORIES;
WVC 38 - 5 - 1
§38-5-1. Ascertainment by interrogatories of estate upon which
fieri facias or execution is a lien and of real
estate to which judgment debtor is entitled.
To ascertain the estate on which a writ of fieri facias
issued by any court of record, or an execution issued by a
justice of the peace, is a lien, and to ascertain any real estate
in or out of this state to which a debtor named in such fieri
facias or execution is entitled, upon application of the
execution creditor, the clerk of the court from which the
execution issued, or, if it was issued by a justice of the peace,
the clerk of the circuit court of the county in which such
justice resides, shall issue a summons against the execution
debtor, or any officer of a corporation execution debtor having
an office in this state, or any debtor or bailee of him or it,
requiring the execution debtor to appear before a commissioner in
chancery of the county from which the summons issued, or, if the
execution creditor so directs, before a commissioner in chancery
of the county in which such execution debtor resides, such
commissioner and his county to be named in the summons; or
against any debtor or bailee of such execution debtor, requiring
such debtor or bailee to appear before a commissioner in chancery
of the county where such debtor or bailee resides, such
commissioner and his county to be named in the summons, such
appearance to be made at a time and place to be designated
therein, to answer upon oath such questions as shall be
propounded at such time and place by counsel for the execution
creditor, or by the commissioner.
WVC 38 - 5 - 2
§38-5-2. Time of return of summons and appearance of debtor.
The summons mentioned in the preceding section shall be
directed to an officer of the county in which the commissioner
before whom it is returnable resides, and shall be served in such
county. Such summons shall be returnable not more than sixty
days from its date. The debtor or other person served with such
summons shall appear at the time and place mentioned and make
answer under oath to the questions propounded.
WVC 38 - 5 - 3
§38-5-3. Record of examination by commissioner; objections and
Such questions and answers shall, if required by any party,
be taken down in writing at the expense of the party requesting
it and certified by the commissioner at the conclusion thereof.
The commissioner shall enter in his proceedings, and report to
the court whose clerk issued the summons aforesaid any and all
objections taken by such debtor against answering any questions,
and if the court afterwards sustain any one or more of such
objections, the answers given, as to which objections are
sustained, shall be held for naught in that or any other cause.
WVC 38 - 5 - 4
§38-5-4. Conveyance of real estate outside state and delivery or
assignment of personal estate to officer.
Any real estate outside this state, to which it may appear
by such examination that the execution debtor is entitled, shall
be forthwith conveyed by him to the officer to whom was delivered
such fieri facias or execution; and any money, bank notes,
securities, evidences of debt, or other personal estate, which it
may appear by such examination are in the possession or under the
control of such debtor, though in the hands of some other person,
shall be delivered by him, as far as practicable, to the same
officer, or by such other person and in such manner as may be
ordered by the commissioner; and any chose in action or other
intangible property shall be assigned or conveyed to the officer.
WVC 38 - 5 - 5
§38-5-5. Compelling debtor to answer.
If any person summoned under the four preceding sections
shall fail to appear and answer, or shall make any answers which
are deemed by the commissioner to be evasive, or if having
answered shall fail to make such conveyance, assignment and
delivery as is required by such sections, such commissioner shall
issue a writ directed to the sheriff of the county requiring such
sheriff to take the debtor or other person summoned and to keep
him safely until he shall make proper answers, or such
conveyance, delivery or assignment as the case may be, and upon
making such answer or such conveyance, delivery or assignment, he
shall be discharged by such commissioner. He may also be
discharged by the court from whose clerk's office the fieri
facias or execution issued, or by the judge thereof in vacation,
in any case, if the court or judge shall be of opinion that he
was improperly or unlawfully detained in custody.
WVC 38 - 5 - 6
§38-5-6. Report by commissioner.
The commissioner shall return all questions and answers
taken down in writing before or filed with him and shall report
all of the proceedings under the preceding sections to the court
in which the judgment is, or, if the judgment be before a
justice, to the circuit court of the county in which such justice
WVC 38 - 5 - 7
§38-5-7. Orders concerning disposition of property conveyed,
delivered or assigned to officer.
The court to which the commissioner returns his report, as
required by the preceding section, may make any order it may deem
right as to the sale and proper application of the estate
conveyed, delivered or assigned under section four of this
WVC 38 - 5 - 8
§38-5-8. Sale of real estate conveyed to officer.
Real estate conveyed to an officer under this article shall,
unless such court direct otherwise, be sold, after giving at
least thirty days' notice, by posting the same at the door of the
courthouse of such officer's county and some other conspicuous
place, near the residence of the owner, if he be a resident of
the county, and by publishing the same as a Class II legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code, and the publication area for
such publication shall be the county. The real estate shall be
conveyed to the purchaser by the officer or his deputy.
WVC 38 - 5 - 9
§38-5-9. Disposition of personal property and collection of
An officer to whom there is a delivery under this article,
when the delivery is of personal property which is subject to
levy under the provisions of section six, article four of this
chapter, shall dispose of the same as if levied on by him under a
writ of fieri facias or execution, or when the property delivered
or assigned is an evidence of debt, he may receive payment of
such debt within sixty days after such delivery. Any evidence of
debt or security in his hands which is not so subject to levy
shall, at the end of sixty days, be returned by him to the
clerk's office of such court. The court shall make such order to
enforce the payment of such debt or other security, as is deemed
best. Upon failure to make such return, such officer may be
proceeded against as if an express order of such court for such
return had been disobeyed.
WVC 38 - 5 - 10
§38-5-10. Suggestion on judgment; summons against person
(a) Upon a suggestion by the judgment creditor that a person
is indebted or liable to the judgment debtor or has in the person's
possession or control personal property belonging to the judgment
debtor, which debt or liability could be enforced, when due, or
which property could be recovered, when it became returnable, by
the judgment debtor in a court of law, and which debt or liability
or property is subject to the judgment creditor's writ of fieri
facias, a summons against such person may be issued out of the
office of the clerk of the circuit court or of the magistrate court
of the county in which the judgment creditor obtained the writ of
fieri facias, requiring such person to answer the suggestion in
writing and under oath. Service of a summons issued under this
section may be made as provided by subdivision (1), subsection (d)
of rule four of the rules of civil procedure for trial courts of
record. The return day for a summons issued under this section is
governed by the provisions of rule sixty-nine of the rules of civil
procedure for trial courts of record.
(b) The suggestion by the judgment creditor provided for
herein shall include, to the extent possible, the present address
and social security number of the judgment debtor, which
information shall be made available to the person suggested for
purposes of identifying the judgment debtor and facilitating a
proper answer to the suggestion.
WVC 38 - 5 - 11
§38-5-11. Officer's return of summons.
The officer serving such summons upon a person suggested
shall make a return of the time and manner of service on each
WVC 38 - 5 - 12
§38-5-12. Discharge of liability of person suggested on
If the debt or liability of the person suggested to the
judgment debtor for the money or property owned or held by such
person be evidenced by a negotiable instrument, and such
instrument be negotiated after service on, or notice to, the
person suggested, to a holder in due course, so that such person
becomes obligated to pay the money or deliver the property to
such holder, the lien of the fieri facias thereon shall, to the
extent of such obligation to such holder, be discharged.
WVC 38 - 5 - 13
§38-5-13. Contents of answer of person suggested; verification.
The answer of the person suggested shall state, in addition to
the matters required to be disclosed by the summons mentioned in
section ten of this article, the nature and amount of liability or
indebtedness to the judgment debtor at the time of service of the
summons, or a description of the property of the judgment debtor
held by the person suggested at the time of service of the summons,
and whether the liability of the person, or any part thereof, is
represented by a negotiable instrument, and, in the case of a
bailee, whether there is outstanding any negotiable warehouse
receipt, bill of lading, or other negotiable instrument for any of
the personal property in the person's possession or under the
person's control. The answer shall be verified in the manner
prescribed for the verification of other pleadings.
WVC 38 - 5 - 14
§38-5-14. Discharge of person suggested by payment of money or
delivery of property; officer's receipt.
A person suggested may, at any time before the return day of
the summons mentioned in section ten of this article, deliver the
property or pay the money for which the person is liable at the
time of service of the summons, or a sufficiency thereof to satisfy
the execution, and shall thereby be discharged from any further
liability under the execution, and, as to the property so delivered
and/or money so paid, the person shall be discharged from all
liability whatsoever to the judgment debtor: Provided,
That if the
obligation upon which the person is indebted to the judgment debtor
is evidenced by a negotiable instrument, the obligation shall not,
as to a holder in due course, be discharged by the payment:
That the right of a holder in due course, of a
negotiable warehouse receipt, bill of lading, or other negotiable
instrument for any property so delivered, shall not be impaired by
the delivery. If any payment or delivery is made to the officer
under the provisions of this section, the officer shall give a
receipt for, and make a return of, what is so paid and delivered.
WVC 38 - 5 - 15
§38-5-15. Order of court for payment by person suggested.
If it appears from the answer of the person suggested that, at
the time the writ of fieri facias was delivered to the officer to
be executed, or thereafter, and before the time of the service of
the summons, or the return day of the writ of fieri facias,
whichever comes first, the person was indebted or liable to the
judgment debtor, or had in the person's possession or under the
person's control any personal property belonging to the judgment
debtor, and that the person had not, before notice of the delivery
of the writ of fieri facias to the officer, paid the money or
delivered the property to the judgment debtor, or upon the judgment
debtor's order, and that the debt or liability to pay the money or
deliver the property was not evidenced by a negotiable instrument,
the court may order the person to pay the amount so due from the
person and to deliver the property, or any part of the money or
property, to such person as the court may designate as receiver:
That if it shall appear from the answer of the person
suggested, that the person's debt or liability to pay money or
deliver property is evidenced by a negotiable instrument, the court
may order the payment or delivery, but only upon condition that the
holder of the negotiable instrument shall deliver the same to the
person suggested simultaneously with the payment of the money or
delivery of the property: Provided, however,
That any person
suggested holding property under a pledge or lien shall not be
required to deliver up the property except upon payment to such
person of the debt secured by the pledge or lien.
WVC 38 - 5 - 16
§38-5-16. Effect of order of court as judgment.
An order made against a person suggested shall have the
effect of a judgment, and may be enforced in the same manner as
any other judgment.
WVC 38 - 5 - 17
§38-5-17. Failure of person suggested to answer.
If any person suggested, summoned as provided in this article,
fails to answer, the court may either compel the person to answer,
or hear proof of the matters required by section fifteen of this
article to be disclosed by the person's answer, concerning any debt
or liability due by the person to, or personal property in the
person's possession or under the person's control of, the judgment
debtor at the time of service of the summons, and make the orders
in relation thereto as if what is so proved had appeared in the
WVC 38 - 5 - 18
§38-5-18. Jury trial in suggestion proceedings; waiver of jury;
right of appeal; costs.
When it is suggested by the judgment creditor in any case of
suggestion that the person suggested has not fully disclosed the
debts or liabilities due by the person to, or personal property in
the person's possession or under the person's control of, the
judgment debtor at the time of service of the summons, or has not
delivered to the officer the property, or paid the money, for which
the person was liable, the court shall cause a jury to be
impaneled, without any formal pleadings, to inquire as to the debts
or liabilities or property, or as to the payment or delivery,
unless a trial by jury is waived by the parties, and if trial by
jury be waived, the court shall proceed to hear and determine the
questions at issue. Whether the issues of fact be found by the
court or by a jury, the court shall proceed in respect to any fact
so found, in the same manner as if they had been confessed by the
person suggested, but either party shall be entitled to a writ of
error or an appeal as in other cases. If the verdict or decision
of the court be for the person suggested, the person shall have
judgment for the person's costs against the judgment creditor, and
if the judgment be against the person suggested, the person shall
be adjudged liable for the costs of the suggestion proceeding.
WVC 38 - 5 - 19
§38-5-19. Return by officer as to money received in suggestion
proceedings; disposition of money.
An officer receiving money in a suggestion proceeding shall,
within thirty days after receiving it, make return thereof to the
court or to the clerk's office of the court in which the judgment
is, or, if it was rendered by a justice, to the clerk of the
circuit court of the justice's county, and, for failing to do so,
he shall be liable as if he had acted under an order of such
court. After deducting from such money commissions allowed by
law and his necessary expenses and costs, he shall within thirty
days pay the net proceeds to the parties entitled thereto, and he
and his sureties and their representatives shall be liable
therefor in like manner as if the same had been made under a writ
of fieri facias or execution.
WVC 38 - 5 - 20
§38-5-20. Suit for recovery of property or debt subject to lien.
For the recovery of any personal property or any claim on
which a writ of fieri facias or an execution is a lien under this
article, or the enforcement of any liability in respect to any
such property, or for the enforcement of any debt or liability of
any person to the judgment debtor, on which the writ of fieri
facias or execution is a lien, a suit may be maintained by the
judgment creditor either at law or in equity, as the case may
require. If such suit be at law, it may be brought in the name
of the judgment debtor, for the use and benefit of the judgment
creditor to the extent of his lien. If such suit be in equity,
it may be brought in the name of the judgment creditor. Such suit
may be brought by the judgment creditor instead of a proceeding
in suggestion, or, after a proceeding in suggestion has been
begun, the judgment creditor may, at any time before an order for
payment or delivery has been made against the person suggested,
dismiss such proceeding in suggestion at his own costs, and
commence a suit under this section. If a recovery is had in such
suit at law, the costs shall be assessed against the defendant in
such suit. If no recovery be had, the costs shall be assessed
against the judgment creditor. If the suit be in equity, the
costs may be assessed as in other suits in equity. Any fact
which would constitute a defense to a person suggested under the
provisions of this article shall be a defense to any person sued
under this section.
WVC 38 - 5 - 21
§38-5-21. Form of judgment for money in suit to enforce
execution; receipt for money received by judgment
The judgment or decree for money recovered in any suit
brought under the provisions of the preceding section shall be in
favor of the judgment creditor to the amount of his lien and any
costs and charges which he may be entitled to recover, and, as to
the residue, shall be in favor of the judgment debtor or such
other person as may be entitled thereto, and shall show the
amount to which each person is entitled thereunder. The judgment
creditor shall, within ten days after the receipt of any money
under such judgment or decree, execute and file with the clerk
from whose court the fieri facias or execution issued, a receipt
for such money which shall be credited by such clerk upon such
fieri facias or execution and noted in his execution book.
WVC 38 - 5 - 22
§38-5-22. Disposition of leviable property recovered in suit.
If property which is capable of being levied on under an
execution is recovered in any suit brought under the provisions
of section twenty of this article or in any proceeding in
garnishment, it shall be subject to the lien of the execution
under which the suit to recover such property was brought, and
may be sold under that or a subsequent execution in the same
manner as other property belonging to the judgment debtor.
WVC 38 - 5 - 23
§38-5-23. Additional executions.
Although a judgment creditor avail himself of the proceeding
in suggestion, or of the proceeding provided by sections one and
twenty of this article, he may nevertheless, without impairing
his lien under such proceedings, from time to time, subject to
the limitations prescribed by law, issue other executions upon
his judgment until the same be satisfied.
Note: WV Code updated with legislation passed through the 2013 1st Special Session
The WV Code Online is an unofficial copy of the annotated WV Code, provided as a convenience. It has NOT been edited for publication, and is not in any way official or authoritative.