                                 No. 8 4 - 1 1 6
                 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, 1 9 8 4
                                         Decided:    January 3, 1 9 8 5


Filed: J A ! ~
             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 wrong-
ful 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 wrong-
ful 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 praeci-
pe 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 execu-
tion, 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 op-
posed 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 sher-
iff.    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 lia-
ble.    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 Servic-
es "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 subse-
quently      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 suggest-
ing that Audit Services in any way participated in or direct-
ed 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 with-
out 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 wife1s property.              Under Ohio
law, her property could not be seized to satisfy her hus-
band's debt.       The appellate court reversed the trial court's
entry of a directed verdict in the creditor's favor.             Howev-
er, 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 regard-
ing 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-ationshipwith
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 grant-
ed   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:
