Mastin v. Cullom & Co.

RICE, C. J. Sections 3042 to 3050, inclusive, compose a chapter of the Code. They relate exclusively to the fees of sheriffs and certain other officers therein named. Section 3042 is in the following words: “ Clerks, sheriffs, and other officers hereinafter named, are entitled to receive, for the services hereinafter mentioned, the fees thereto respectively annexed, and no more, — to be paid, taxed, and collected in the manner hereinafter directed.” Section 3047 is the one which prescribes the fees of sheriffs. The only portions of it deemed material to the decision of the case at bar, are two sentences which are in the following words: “For levying fieri facias, and making money [673] tbereon: for the first hundred dollars, five per cent.; for all sums over one hundred dollars, and not exceeding two hundred dollars, four per cent.; for all sums over two hundred dollars, two and one half per cent.; but no commissions are to be charged on costs. For levying a fieri facias, when sale is stayed, after levy, by any restraining order, one per cent, on the amount of the judgment, — to be paid by the person obtaining such order, and to be taxed for his benefit, if successful, against the adverse party, on the determination of the suit.” 'i facias, Jrcended No construction of these two sentences can be sound would, in any contingency, authorize the sheriff and receive, under one of them, a feefor levyingwfiHfri and under the other a feefor levying the same fier making the money thereon. The legislature nevfjAffit'ended that he should be entitled to demand and reeefv Same execution, the fees mentioned in both of these\entences If he is entitled, under a particular execution, to the fSS'p scribed in one of these sections, he cannot, under that execution, be entitled to the fee prescribed in the other. The specific case provided for by one of these sentences, is where he has not only levied a fieri facias, but has made the money thereon. The specific case provided for by the other, is where he has levied a fieri facias, but has been prevented from making the money thereon, by a restraining order which stays any sale whatever under the fieri facias thus levied, Whenever hé is entitled to receive any fee under the latter of these sentences, he is entitled to “ one per cent, on the amount of the judgment.” He becomes entitled to that, at the very instant when sale is stayed, after levy, by a restraining order. Suppose, then, that he levies a fieri facias upon several articles of property; that after this levy, sale as to only one of these articles is stayed by a restraining order; that he thereupon instantly demands and receives, from the person obtaining such order, “ one per cent, on the amount of the judgment”; that he then proceeds to sell under the execution the other articles embraced by his levy; and that such sale yields more than the entire amount of the judgment, interest, costs and fees: is it not clear that, in such case, he would be entitled to the fee prescribed in the sentence first [674] above quoted from section 3047 of the Code, “for levying fieri facias and making money thereon”? We think it is; and the mere, fact that he had demanded and received the “ one per cent, on the amount of the judgment”, when sale was stayed as to the one article of the property levied bn, by the restraining order, would not disentitle him to the fee prescribed for levying a fieri facias and making money thereon. But we are satisfied that, in the case above supposed, he would not be entitled to demand and receive the one per cent, on the amount of the judgment. We hold, that a sheriff is never entitled to the “ one per cent, on the amount of the judgment” prescribed by the sentence last above quoted from section 3047, where the restraining order stays the sale of only aportion of the property levied on, and leaves the sheriff free to sell the other portion, and to levy upon and sell any other property of the defendant to be found in his county, under the execution. We further hold, that where, after the execution is levied by him on several articles of property, the sale of a portion only of those articles is prevented by injunction, he is not entitled to demand or receive from the complainant in the bill, under which the injunction was obtained, any commission or fee under either of the sentences above quoted from section 3047 of the Code. Although, in what we have above said, we have apparently conceded that a fiat for an injunction is a “ restraining order”, within the meaning of section 3047 of the Code, we wish it distinctly understood, that such concession was made because it could not affect the result of this case. Wo do not decide that a fiat for an injunction is a “restraining order”, within the moaning of that section; but we remain uncommitted on that point, and uncommitted on the question, whether a restraining order, obtained in a suit or proceeding instituted in, and determinable by, the court out of which the execution issued, is not the only kind of restraining order intended or embraced by that section. — See Code, §§ 2407 to 2415, inclusive; Pratt v. Keils, at the present term; Edmondson v. Popkin, 1 Bos. & Pul. 270; and other English cases cited in Fanning v. Dunham, 5 Johns. Ch. R. 122. The only point made for appellant, in this court, was, that he was entitled, under the sentence of section 3047 last above [675] quoted, to demand and receive tbe amount for which he is sued in this action, upon the state of facts shown in the bill of exceptions. Entertaining the views above expressed, we feel bound to decide this point against the appellant; and confining our decision to that point, we affirm the judgment of the court below. ’ '