Ring v. Charles Vogel Paint & Glass Co.

Biggs, J. This case reaches us on an appeal from a motion to retax costs. Before we proceed to the discussion of the questions raised by the motion, we must dispose of some preliminary objections raised by the respondent. It is said by his counsel that this appeal is without authority, and for this reason he moves a dismissal. In support of this motion he presents his own affidavit, the purport of which is that Nohl, the assignee, told him that the appeal was taken without his (Nehl’s) authority. On the other side the counsel for the appellants declares on oath that the appeal was taken by him with the assent of both defendants. [377] There is a strong legal presumption that all acts of an attorney in the progress of a suit are done by the direction of the party whom he assumes to represent. A lawyer is an officer of the court, and the presumption of right acting can always be invoked in support of his action in the courts. When this presumption is supported by the affidavit of the attorney himself, a strong-case is made, and it can only be overthrown by the production of very satisfactory evidence of want of authority. We are of the opinion that the respondent’s evidence in this case is insufficient for that purpose. Valle v. Picton, 16 Mo. App. 178; Keith v. Wilson, 6 Mo. 439. Neither do we think that the appeal ought to be dismissed for want of a proper affidavit. Mr. Hezel, a member of the bar, but not at that time the attorney of record for the appellants, made the affidavit, but he failed to state that he was the agent of the appellants. This is not a fatal omission, but it is cured when the agency appears aliunde. Melcher v. Scruggs, 72 Mo. 406; Kearney v. Railroad. 15 Mo. App. 576. The agency in this case was proven by the affidavit of Mr. Haeussler. Preliminary to the discussion of the items of cost here in controversy, it may be stated that the entire subject of costs, in both civil and criminal cases, is a matter of statutory enactment; that all such statutes must be strictly construed, and that the officer or other persons claiming costs, which are contested, must be able to put his finger on the statute authorizing their taxation. Miller v. Muegge, 27 Mo. App. 670; Shed v. Railroad, 67 Mo. 687; Gordons v. Maupin, 10 Mo. 352 ; Ford v. Railroad, 29 Mo. App. 616. It appears that the plaintiff brought an action in the circuit court of the city of St. Louis by attachment against the Charles Vogel Paint & Glass Company, and that the defendant Pohlman, the then sheriff of the city [378] of Louis, seized, under the writ of attachment, six hundred and two boxes of assorted window glass, fifty-four barrels of oxide of zinc, and sixty-five barrels of pine tar. Pohlman summoned three persons to appraise the goods, and he asked that the amount paid by him for the appraisement, to-wit, $45, and the additional sum of $3 for summoning the appraisers, be taxed as costs in his favor. The circuit court held that he was entitled to the amounts claimed. We can find no statute authorizing the appraisement of goods seized under a writ of attachment. We can very well see that in many cases the value of goods seized may be a matter of very great importance to the sheriff. If the levy is insufficient, when it might have been extended to other goods belonging to the defendant in the execution or attachment, the sheriff would be liable to an action by the plaintiff. And, on the other hand, if the levy should be excessive, he might be sued by the owner of the goods for an excessive levy. But this does not authorize the sheriff to procure satisfactory evidence for his own protection, at the expense of the litigants. A sheriff must decide for himself the extent and sufficiency of a seizure. This is one of the responsibilities attached to his office. Fitzgerald v. Blake, 42 Barb. 513. The statement, that the appraisement was made at the request of the attorney for the defendants, is not borne out by the record. We, therefore, decide that the circuit court erred in allowing these two items of costs. The court allowed the respondent, as part of his costs, $15 for labor and clerk hire. The statute (R. S. 1889, sec. 549) provides that the court shall allow the officer having charge of property seized under an attachment reasonable compensation for his trouble and expenses in keeping the same. But, under the authority of Miller v. Muegge, supra, the officer must satisfy the court by evidence that the expenditure [379] was justifiable and reasonable. The only proof concerning this item was, that the sheriff had paid the money. If, on a retrial, the respondent satisfies the court by evidence that the expenditure was necessary, and the amount paid reasonable, then the charge should be allowed ; otherwise, it should be rejected. The court allowed the respondent one-half commissions on the amount realized from the sale of the goods. This item is also challenged. Under the peculiar facts, a novel question is presented. The day on which the goods were attached, the defendant corporation made a general assignment for the benefit of its creditors. The assignee was let in to defend the suit, and he gave a forth-coming bond for the property. The property was afterwards sold by the assignee under an order of court, with instructions to hold the proceeds until the attachment suit was determined. This action was decided in the plaintiff ’ s favor, and the assignee was ordered by the court to- pay to the respondent’s successor in office the amount of plaintiff’s judgment, and a sufficient amount to cover costs, in which were included half commissions for the respondent. This charge must be sustained, if at all, under the following clause of section 4989 of the statutes in reference to the commissions of •sheriffs. The clause reads: “For .commissions for receiving and paying moneys on execution or other process, where lands or goods have been levied on, advertised and sold, three per cent, on $500, and two per cent, on all sums above $500, and half of these sums when the money is paid to the sheriff without a levy, or where the lands or goods levied on shall not be sold, and the money is paid to the sheriff or person entitled thereto, his agent or attorney.” A proper construction of this clause does not authorize this item of costs. The commissions (if any) would go to the respondent’s successor who collected and disbursed the money. If the respondent is entitled to any compensation, it [380] must be allowed him by the court under section 549 ( R. S. 1889), which reads : “ When property is seized on attachment, the court may allow to the officer having charge thereof such compensation for his trouble and expenses in keeping the same as shall be reasonable and just.” The item of fifty cents for taking and returning the forth-coming bond is probably authorized by section 4989 of the statute, but we can find no authority for the fee of $1 for making application for an order to sell the property. Therefore, it should have been disallowed. With the concurrence of the other judges, the judgment of the circuit court will be reversed, and the cause remanded for further trial in accordance with this opinion. It is so ordered.