Harrington v. Hill

The opinion of the court was delivered by Eoss, J. The only question raised is in regard to the liability of the trustee, and its decision turns upon whether an officer who has taken and sold property on an execution and returned the execution satisfied, with no detailed return thereon of his doings, and without itemizing his fees, can, when called to account by the defendant in the execution, legally retain the amount which the law would have allowed him as fees if the return had been fully made and the fees itemized, or whether he must account for the proceeds of the property sold above what is necessary to satisfy the amount of damages and costs in the execution. It is evident that under the decisions of this court which hold an officer liable in this process for money collected by him on an execution, the plaintiff, who by the trustee process comes into the rights of the defendant, can hold the trustee for any surplus of this kind remaining in his hands if the defendant can enforce a payment ■thereof to him; for the defendant could only enforce payment to him on the ground that the money remainifig in the trustee’s hands was his money, and that it had never become the money of the trustee because of his failure to so conduct himself in making his return that the money became lawfully the trustee’s. The general ownership of property taken on execution and the avails of its sale thereon, remains in the defendant in the execution, until by lawful proceedings on the execution the ownership is changed to the plaintiff in the execution or to the officer for his fees. By s. 29, c. 12, Gen. Sts. (which chapter treats among other things of the powers, duties and liabilities of sheriffs,) it is [47] provided: “ The officer serving any process shall indorse thereon his fees and charges, and shall specify the number of miles from the place of service to the place of return, otherwise his fees shall not be allowed.” It can hardly be claimed that this language does not make the indorsement of his fees in the manner specified a condition precedent to his right to demand payment of them from the plaintiff in the process, or to retain them out of money of the defendant which may come into his hands on the process. By it no fees as such are earned until the endorsement is made. This section of the statute and the duty imposed are entirely independent of ss. 16, 17, c. 125, Gen. Sts., which make any officer who knowingly receives greater fees than allowed by law, liable to the person aggrieved for tenfold the excess so received. Hence it cannot be said that its requirements are in aid of the section cited from c. 125, and that it is to be construed with that view. A sheriff is clothed with arbitrary and extensive powers. Both of the parties to the process committed to him for service are more or less at his mercy in reference to the amount and payment of his fees. Section 29, quoted above, has this fact in view, and is designed to protect the parties to the process from unjust exactions by him for the service of the same, by requiring that he shall make a clear statement of the items of his charges before he shall be entitled to or allowed the same. The trustee, never having complied with this provision of the statute on the processes which be served on the defendant, cannot, in the accounting with the defendant for the property taken and sold on such processes, although such accounting enures to the benefit of the plaintiff, be allowed his charges or fees. The County Court went quite as far as warrantable in allowing him in the accounting a reasonable sum for all his services both in serving the processes and under the contract of May 23d, 1868. The case, Houston v. Howard, 39 Vt. 54, is clearly distinguishable from the case at bar. The defendant in that case was a trespasser, and not one of the parties to the process on which the charges were made. Besides, the officer had amended his return of his fees so as to comply with the statute. Here the defendant, on whose right the plaintiff stands, was the general owner of the funds in the trustee’s hands, [48] and had the right to call him to an accounting for the money received by him from the sales made on the executions. We find no error in the judgment of the County Court, and that judgment is affirmed.