Coleman v. Ross

Stkahan, J. The only question presented in this case involves the construction of the following language in Section 4, Session Acts, 1885, p. 121, fixing sheriff’s fees : “ For all sums of money actually made on any process and returned to the clerk, under one thousand dollars, three per centum; on all sums over one thousand dollars, two per centum.” In this case the plaintiff bid in the property, and the amount of his bid was credited on the execution, so that no money was in fact paid except about $74, which included all costs and disbursements in the case except the sheriff’s commissions on the [351] sale. The question, therefore, is this: Is the amount bid by the plaintiff at his execution sale a “ sum of money actually made on any process and returned to the cleric f If it is, then the sheriff is entitled to the commission claimed ; otherwise he is not. It seems to me it must be conceded at the outset that there was no sum of money actually made ; nor was there any sum returned to the cleric. Both of these conditions must ex™ ist before the sheriff is entitled to commission. In other words, this court has uniformly adopted the rule of strict construction as applied to fees and costs and disbursements; and, therefore, to entitle an officer or a party to fees or to disbursements, he must bring himself within the terms of the statute authorizing or requiring its payment. In construing a similar provision of the fee bill relating to the clerk’s commission, this court, per Lord, C. J., said: “ The facts concede that no money was actually received, kept, or disbursed by the clerk. Will the rule of strict construction applicable to such statutes admit of the argument that there was a constructive receiving, keeping, and disbursing of this money, which entitles the clerk to his commissions ?’’ (Jackson v. Siglin, 10 Or. 93.) Such, also, is the effect of the language of this court, in Crawford v. Abraham,, 2 Or. 163, where, in speaking of a claim for disbursements, it is said: “ The claim for disbursements must be for the number of miles actually traveled, and the number of days in actual attendance as a witness only,” thus excluding all possibility of constructive charges. So in Howe v. Douglas Co., 3 Or. 488, this court expressly rejected the theory that a sheriff could receive pay for constructive mileage in executing certain papers in behalf of the county. In this case the sheriff charged and received his regular fees for every official act performed by him in executing this process, such as, for the levy, notices of sale, certificate of sale and return; and it does seem to me to be an unreasonable claim for him to demand nearly $400 for commissions, when there was no money whatever received by him or paid over to [352] the clerk, and no risk or liability incurred. Of course, if the statute plainly allows it, we have nothing to do with the question as to whether it is reasonable or not; but in cases of doubt it might be very material to consider the consequences of a particular construction. But in this case there can be no doubt of the legislative intent, and that was not to allow commissions unless the money was actually, npt figuratively or constructively, received on the process, and then paid over to the clerk. Unless this language is to receive this interpretation, its careful and studied use by the legislature is without meaning and without effect. Nor do I think a sheriff could lawfully demand or compel the plaintiff to pay over the amount of his bid in money, when he happens to become the purchaser, and when he is entitled to receive it back again at once. (Fowler v. Pearce, 7 Ark. 28.) In such case the whole purpose of the proceeding is accomplished when the amount of the bid is credited on the execution and a certificate of sale issued, the costs paid and the writ returned to the clerk. This enables the court to confirm the sale, to be followed in due time by the sheriff’s deed, for which he is entitled to charge a specified fee. Fiedeldey v. Diserens, 26 Ohio St. 312, tends very much to sustain our construction of this statute. It was there said: “ The question argued by counsel is, whether the master was entitled to poundage on the $6,000, the purchase money on the property sold. The master was entitled to the same fees allowed to sheriffs in like cases (Code, Sec. 613); and by the statute regulating sheriffs fees (S. & S. 365) he is allowed poundage on all moneys actually made and paid to him.” It seems to us the common pleas was right, in holding that this sum of $6,000 was not money made and paid within the meaning of the statute.” From the facts of this case, it appears that one Burkett obtained a decree of foreclosu 'e against Fiedeldey for $1,800, due on -mortgage, and for a sale of the mortgaged premises; that the defendant in error was appointed special master commissioner in the case. An order of sale was duly issued to [353] him, and he made return thereon that he had made sale of the mortgaged premises to Joseph Longworth for the sum of $>6,-000. The sale was in all respects regular and according to law; but before the sale was confirmed, Fiedeldey paid the amount of the judgment to the plaintiff Burkett. The court thereupon set the sale aside, and ordered Fiedeldey to pay the costs. Among-other items was $10 poundage on the f0,000. So also in Dawson v. Grafflin, 84 N. C. 100, it is held that a sheriff is entitled to commissions only on moneys actually collected by himself under execution, and not where the same is paid to the plaintiff by the defendant after levy. I am aware there are numerous cases where sheriffs have been allowed commissions or “poundage ” after a levy, and even when there was no money paid; but in no case that I have been able to find, have any such allowances been made under a statute containing the guarded language to be found in ours. I think the judgment should be reversed, and the cause remanded to the court below for further proceedings. Lord, C. J., concurs. Thayer, J., expresses no opinion.