168 Mo. 577 | Mo. | 1902
— The plaintiff is a county having “a population of 100,000 and less than 300,000.” The defendant is the sheriff of that county. In such counties the sheriff for his official services is paid a salary out of the county treasury and is required to collect, account for and pay all the fees of his office into the county treasury except “his conn missions as trustee, received from acting as trustee in any deed of trust or mortgage with power of sale.” [R. S. 1899, sec. 3290.]
The school law requires- that whenever any moneys belonging to the public school funds shall be loaned by the county courts, the same shall be secured by bond, to the county, for the use of the fund, to which the moneys belong, with personal security, and a mortgage on real estate. [R. S. 1899, sec. 9832.] That such” mortgage “shall be in the ordinary form of a conveyance in fee, shall recite the bond, and shall contain a condition that if default be made in paymepf
On March 11, 1889, the county court of Jackson county ’loaned of the public school fund of said county to one David Waldo the sum of $24,000, to secure the payment of which on-December 31, 1889, with eight per cent per annum compound interest, he duly executed his bond with two sureties and a mortgage on 200 acres of land in Jackson county, in accordance with the requirements of sections 9832 and 9833, supra, and on the 8th of November said county having first found that at that date there remained of the principal of said loan the sum of $21,000 and of the interest thereon the sum of $11,336.96, making a total of $32,336.96 long past due and unpaid, made an order of record to the sheriff of said county in accordance with the requirements of section
The defendant in his answer admits that he has said sum of $657.54 in his hands, claims that of it he is entitled to the sum of $197.66 for his own use, under section 4369, Eevised Statutes 1899, and that the remainder thereof ($459.-88) should be paid to the county treasurer for the benefit of the school fund of said county, and offers and prays to be permitted to so pay it.
This plea the court- sustained, held that the defendant was entitled in his own right'to said sum of $197.66 and ordered and adjudged that he pay the sum of $459.88, less the costs of this suit, to the county treasurer for the use of the school fund of said county, and in default of such payment within five days the plaintiff have execution therefor. From this judgment the plaintiff appeals, and contends that Jackson county is entitled for the use of the general fund of the county to said sum of $657.54. The cases cited by counsel shed no light on this controversy. It is well-settled law that all statutes in reference to costs must be construed strictly and that an officer .can not legally claim any remuneration unless the State has expressly conferred the .right. [Shed v. Railroad, 67 Mo. 687; Gammon v. Lafayette Co., 76 Mo. 675; Williams v. Chariton County, 85 Mo. 645; Givens v.
Section 3245, Revised Statutes 1899, under which plaintiff claims, provides, that sheriffs shall be allowed “for commission for receiving and paying moneys on execution or other process, where lands . . . have been levied on, advertised and sold, three per cent on five hundred dollars, and two per cent on all sums above five hundred dollars.”
In this case the defendant as sheriff, in the discharge of his official duty as such, levied on, 'advertised and sold the mortgaged land, on a duly certified copy of the order of the county court, ^which the statute declares “shall have the effect of a fieri facias on a judgment of foreclosure by the circuit court, and shall be proceeded with accordingly.” The statute further declares that upon a judgment of foreclosure by the circuit court, “the execution to- be issued shall be a special fieri facias, in accordance with the judgment, and shall be executed and returned as executions in ordinary civil suits” [R. S. 1899, sec. 4352]. Thus, by express statutory law, the duly certified copy of the order of the county court in the hands of the defendant as sheriff became in fact a final process, in the nature of and equivalent to- an execution on a judgment of a court of general jurisdiction, and the service within the terms of section 3245, according to strict rules of construction. For this service the commission allowed him