Opinion of the Clerk

381 So. 2d 55 | Ala. | 1980

RULE 7, ALABAMA RULES of JUDICIAL ADMINISTRATION — NO DOCKET FEE — POST JUDGMENT DISCOVERY PURSUANT to RULES 26-37, ARCP; NO FEE FOR SERVICE OF INTERROGATORIES OR REQUEST FOR PRODUCTION IN POST JUDGMENT DISCOVERY

Mrs. Ruth Gasser, Clerk of the Circuit Court of Cullman County, Alabama, has submitted to me the following inquiry:

"Under Rule 69 of the Alabama Rules of Civil Procedure a judgment creditor may obtain discovery from any person, including the judgment debtor, in the manner provided in Rules 26 through 37.

"What costs, if any, must the judgment creditor or his successor in interest pay on the filing of post judgment discovery? Additionally, what costs, if any, is such creditor required to pay for service of interrogatories or request for production?"

This opinion is given pursuant to Section 12-2-19 (d), Code 1975.

It is my opinion that the judgment creditor is not required to pay any filing fees or costs for initiating post judgment discovery pursuant to Rules 26 through 37, Alabama Rules of Civil Procedure, and that the judgment creditor is not required to pay for service of interrogatories or request for production in post judgment discovery.

That part of Rule 69, Alabama Rules of Civil Procedure, pertinent to this inquiry, reads as follows:

". . . In aid of the judgment or execution, the judgment creditor or his successor in interest when that interest appears of record, may obtain discovery from any person, including the judgment debtor, in the manner provided in these rules."

The part of Rule 26 (a), Alabama Rules of Civil Procedure, that is pertinent to this inquiry, is as follows:

"(a) Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission . . ."

Rule 7, Alabama Rules of Judicial Administration, is as follows:

"Fees for miscellaneous filings.

"Any filing for which there is no express cost under the consolidated fee structure shall be treated as an original filing for cost purposes."

I Post judgment discovery in the manner provided in Rules 26 through 37, Alabama Rules of Civil Procedure, is part of the case in which judgment was rendered. The word "filing" in Rule 7, Alabama Rules of Judicial Administration, means "filing of a case". See Opinion of the Clerk, No. 1 (1977), Ala.,345 So.2d 1329; Opinion of the Clerk, No. 12 (1978), Ala., 361 So.2d 534. A filing initiating post judgment discovery under Rules 26 through 37, Alabama Rules of Civil Procedure, is not the filing of a case under Rule 7, Alabama Rules of Judicial Administration. The filing is not treated as an original filing for cost purposes and does not require the payment of any fees or costs.

II The Alabama Rules of Judicial Administration contain no provision for miscellaneous service fees. Rule 7 does refer, however, to the consolidated fee structure. The words "consolidated fee structure" in civil cases mean the fees prescribed in Sections 12-19-70 through 12-19-138, Code 1975. See Opinion of the Clerk, No. 11 (1978), Ala., 356 So.2d 636;Opinion of the Clerk, No. 21 (1979), Ala., 375 So.2d 1066.

Section 12-19-20 (b), Code 1975, provides that "The fees prescribed in this chapter shall be exclusive of all other fees", except specified fees which are not pertinent here.

There is no cost or fee prescribed in the consolidated fee structure for service of interrogatories or request for production in post judgment discovery. The judgment creditor is not required to pay for service of interrogatories or request for production in post judgment discovery.