NOTES TO RULE 69
HISTORY: (Amended Oct. 20, 1949; July 1, 1970; Aug. 1, 1987)
Notes of Advisory Committee on Rules.
Note to Subdivision (a).
This follows in substance USC, Title 28, former § 727 (Executions as provided by State laws) and former § 729 (Proceedings in vindication of civil rights), except that, as in the similar case of attachments (see note to Rule 64), the rule specifies the applicable State law to be that of the time when the remedy is sought, and thus renders unnecessary, as well as supersedeas, local district court rules.
Statutes of the United States on execution, when applicable, govern under this rule. Among these are:
USC, Title 12:
§ 91 (Tranfers by bank and other acts in contemplation
in insolvency)
§ 632 (Jurisdiction of United States district courts in cases arising out
of foreign banking jurisdiction where Federal reserve bank a party)
USC, Title 19: § 199 (Judgments for customs duties, how payable)
USC, Title 26: § 1610(a) (Surrender of property subject to distraint)
USC, Title 28, former:
§ 122 (Creation of new district or transfer of territory;
lien)
§ 350 (Time for making application for appeal or certiorari; stay pending
application for certiorari)
§ 489 (District Attorneys; reports to Department of Justice)
§ 574 (Marshals, fees enumerated)
§ 786 (Judgments for duties; collected in coin)
§ 811 (Interest on judgments)
§ 838 (Executions; run in all districts of State)
§ 839 (Executions; run in every State and Territory)
§ 840 (Executions; stay on conditions), as modified by Rule 62(b)
§ 841 (Executions; stay of one term), as modified by Rule 62(f)
§ 842 (Executions; against officers of revenue in cases of probable cause),
as incorporated in Subdivision (b) of this rule
§ 843 (Imprisonment for debt)
§ 844 (Imprisonment for debt; discharge according to State laws)
§ 845 (Imprisonment for debt; jail limits)
§ 846 (Fieri Facias; appraisal of goods; appraisers)
§ 847 (Sales; real property under order or decree)
§ 848 (Sales; personal property under order or decree)
§ 849 (Sales; necessity of notice)
§ 850 (Sales; death of marshal after levy or after sale)
§ 869 (Bond in former error and on appeal), as incorporated in Rule 73(c)
§ 874 (Supersedeas), as modified by Rules 62(d) and 73(d)
USC, Title 31: § 195 (Purchase on execution)
USC, Title 33: § 918 (Collection of defaulted payments)
USC, Title 49: § 74(g) (Causes of action arising out of Federal control of railroad; execution and other process)
Special statutes of the United States on exemption from execution are also continued. Among these are:
USC, Title 2: § 118 (Actions against officers of Congress for official acts)
USC, Title 5: § 729 (Federal employees retirement annuities not subject to assignment, execution, levy, or other legal process)
USC, Title 10: § 610 (Exemption of enlisted men from arrest on civil process)
USC, Title 22, former: § 21(h) (Foreign service retirement and disability system; establishment; rules and regulations; annuities; nonassignable; exemption from legal process)
USC, Title 33: § 916 (Assignment and exemption from claims of creditors) Longshoremen's and Harborworkers' Compensation Act
USC, Title 38:
§ 54 (Attachment, levy or seizure of moneys due
pensioners prohibited)
§ 393 (Army and Navy Medal of Honor Roll; pensions additional to other pensions;
liability to attachment, etc.)
Compare Title 34, § 365(c) (Medal of Honor Roll;
special pension to persons enrolled)
§ 618 (Benefits exempt from seizure under process and taxation; no deductions
for indebtedness to United States)
USC, Title 43: § 175 (Exemption for execution of homestead land)
USC, Title 48: § 1371o (Panama Canal and railroad retirement annuities, exemption from execution and so forth)
Supplementary Note of Advisory Committee Regarding this Rule.
With respect to the provisions of the Soldiers' and Sailors' Civil Relief Act of 1940, 50 USC Appendix, § 501 et seq., see Notes to Rules 62 and 64 herein.
Notes of Advisory Committee on 1949 Amendments to Rules.
The amendment effective October 1949 substituted the citation of "Title 28, USCA, § 2006" in subdivision (b) in place of the citation to "Section 989, Revised Statutes, USCA, Title 28, § 842."
Notes of Advisory Committee on 1970 Amendments to Rules.
The amendment assures that, in aid of execution on a judgment, all discovery procedures provided in the rules are available and not just discovery via the taking of a deposition. Under the present language, one court has held that Rule 34 discovery is unavailable to the judgment creditor. M. Lowenstein & Sons, Inc. v American Underwear Mfg. Co., 11 FRD 172 (ED Pa 1951). Notwithstanding the language, and relying heavily on legislative history referring to Rule 33, the Fifth Circuit has held that a judgment creditor may invoke Rule 33 interrogatories. United States v McWhirter, 376 F2d 102 (5th Cir 1967). But the court's reasoning does not extend to discovery except as provided in Rules 26--33. One commentator suggests that the existing language might properly be stretched to all discovery, 7 Moore's Federal Practice para. 69.05 [1] (2d ed 1966), but another believes that a rules amendment is needed. 3 Barron & Holtzoff, Federal Practice and Procedure 1484 (Wright ed 1958). Both commentators and the court in McWhirter are clear that, as a matter of policy, Rule 69 should authorize the use of all discovery devices provided in the rules.
Notes of Advisory Committee on 1987 amendments to Rules.
The amendments are technical. No substantive change is intended.