65 Neb. 639 | Neb. | 1902
This is an action brought in the district court for Platte county by Thomas O’Shea and Willis McBride, against D. C. Kavanaugh, sheriff, and certain others who were sureties on his official bond, for the recovery of certain costs paid to the sheriff,' which it is claimed Were illegal, and for the recovery of the fifty-dollar penalty provided by statute for receiving fees in excess of those authorized by statute. Plaintiffs in error in their petition allege that they had brought suit for foreclosure of a mortgage in the district court of Platte county, which had progressed so far that a decree had been entered foreclosing the mortgage, upon which an order of sale had been issued and placed in the hands of the sheriff, defendant in error Kavanaugh; that said sheriff had proceeded to advertise the property upon which the decree of foreclosure was had; that some time before the day of sale plaintiffs entered into an agreement with the defendant in the foreclosure case, by the terms of which a private sale was had of the lands described in the
The several assignments of error resolve themselves into the question whether under the evidence the fees charged and collected by Kavanaugh as sheriff were legal. The facts disclosed by the record, briefly stated, are as follows: On January 27,1896, an order of sale was issued upon a decree of foreclosure in favor of plaintiffs in error, was delivered to Kavanaugh as sheriff, and on January 30, 1896, he duly advertised the land to be sold March 2d, 1896. On
It is claimed by plaintiffs in error that the following items of costs were in excess of the fees allowed by law, viz.: serving notice, $1.50; for copy of appraisement, $1,— which latter charge it is claimed should have been but 25 cents. For advertising sale, the sheriff charged and collected $1; which charge, it is claimed, should have been but 50 cents. The sheriff charged for levy of order of sale $1, and for return of order of sale $1. It is contended that he was entitled to $1 for levy and return, but not $1 for the levy and $1 for the return. It is further claimed that the charge of $29.47 charged as commission upon money due upon the decree, is illegal. It is the settled rule in this state that an officer can charge only such fees for the performance of services as are allowed by law, and that services performed by an officer for which the statute does not expressly authorize a charge must be performed gratuitously. Stoner v. Keith County, 48 Nebr., 279; State v. Meserve, 58 Nebr., 451. The sheriff testified that the item of $1.50 for serving notices is a charge ma.de by him for
The only remaining item which it is claimed is an illegal charge is the item of $29.47 as commission on the money represented by the decree. Section 5, chapter 28, Compiled Statutes, under which it is sought to justify the charge, is as follows: “Commission on all money received and disbursed by him on execution, or order of sale, order of attachment, decree, or on sale of real or personal property, shall be for each dollar not exceeding four hundred dollars, three cents; for every dollar above four hundred dollars and not exceeding one thousand dollars, two cents; for every dollar above one thousand dollars, one cent: Provided, That in all cases where no money is received or disbursed by him, no percentage shall be allowed.” It is claimed by defendants in error, and this view was' evidently entertained by the learned trial judge, that the money represented by the decree of foreclosure should have been paid to the sheriff and disbursed by him, and that the clerk, in receiving and paying out the money, was acting for the sheriff, and that the sheriff is entitled to a commission on the amount of the money represented by the decree in all respects as though a sale of the premises had been made by the sheriff, and the money received and disbursed by him. We are unable to accept this view. There can be no doubt that it was the purpose of the legislature in pro
It is claimed by defendants in error-that inasmuch as the costs claimed to be illegal were paid by the copartnership of O’Shea & McBride, and that after the fees were paid and before the commencement of the present action the copartnership was dissolved, the right of action against the sheriff did not survive; that the copartnership is a separate entity, and that after the dissolution thereof the individuals composing the same can not maintain the action. We are unable to see any merit in this contention. It is disclosed by the testimony that Thomas O’Shea and Willis McBride, plaintiffs in error, were the sole members of the firm of O’Shea & McBride, and we are of the opinion that they are entitled to maintain this action.
Again, it is contended that section 34, chapter 28, Compiled Statutes, under which it is sought to recover the fifty-dollar penalty in this case, only applies where a sheriff or other officer demands the payment of costs in advance of the performance of the services, and that where costs are charged and collected after the services have been rendered the party required to pay the costs can, by bringing the matter to the attention of the court in a'motion to retax costs, obtain all proper relief, and therefore the section under consideration has no application to cases such as that at bar, where the sheriff makes the charges and performs the services, and afterwards the costs are taxed and collected in the usual way. We are unable to see any merit in this contention. It was manifestly the intention of the legislature, by the language referred to, to provide against the collection of illegal costs by public officers in all cases, and the fact that the party could gain redress by means of a motion to retax costs does not deprive him of his right
Objection is made to the giving of certain instructions, and the refusal, of others requested; but inasmuch as the case must be reversed because of the insufficiency of the evidence to sustain the verdict, it will not be necessary to consider the question of instructions.
For the reasons stated, it is recommended that the judgment of the district court be reversed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Reversed.