Oswitchee Co. v. Hope

COLLIER, C. J.

It is not the appropriate office of the clerk to tax in the bill of costs, the commissions allowed by law, to the sheriff, consequent upon his levying a writ of fierie facias. As it cannot be known when the writ issues, whether he will be entitled to any commissions, or how much, no express authority can be conferred by the execution to make any. Our practice has been invariably for the officer levying a fi.fa. to collect as an incident to the sum adjudged to the plaintiff, all consequential costs. But it is unnecessary to consider this point further, as the record presents other questions of more prominency, which are decisive of the case.

It may be conceded, that under our statute in respect to the fees of sheriffs, [Aik. Dig. 188,] that the sheriff is entitled to the half commissions allowed thereby, after the levy of a fierie facias, although the parties enter into a compromise, or the plaintiff directs a stay of further proceedings, so as to dispense with a sale. [See also Watson’s sheriff, 79.]- But this is the case only when the levy is regularly and justifiably made. Where civil process is placed in' the sheriff’s hands, it is entirely competent for the plaintiff to suspend its energy by directing him not to execute its mandate. It is certainly the duty of an officer to obey with promptness all process committed to his hands; but the nature of his office does not require that he should set at defiance the directions of him for whom the writ shows he was called on to act. If he is instructed not to levy an execution until further orders, or merely to hold it, as it is sometimes called, to bind the debtor’s property, in neither case can the officer claim fees for the disobedience of instructions. True, the sheriff is a public officer, necessarily possessing extensive powers and held to strict accountability; he is an agent provided by the law, to aid in the administration of justice; yet in the execution of process in suits between individuals, he must also be regarded as the agent of the party who is the actor. This conclusion is enforced by the reason and convenience of the. thing, as well as by the fact that its correctness has always been acquiesced in, in practice. A jierie facias is. never placed in the hands of an officer with a view merely to his own benefit, but that he may make the money which has been adjudged against the defendant therein. The idea, then, that in despite of directions to the contrary, the sheriff may levy on and sell the debtor’s property, cannot be tolerated. Such a conclusion would assume that, the execution of the judgment was beyond the plaintiff’s control, or that the officer was authorised to proceed with a view to his own emolument only, both of which assumptions we have said, were alike unfounded. The commissions allowed to a sheriff are not a mere gratuity, but are intended as a compensation for services performed, and unless this compensation be earned by the performance of the service in a legal and justifiable manner, he cannot insist upon receiving it.

But if it were conceded that half commissions were due to ■ the sheriff, so far as any thing appears to the contrary, no order directing their taxation would be regular, unless the defendant in .execution had notice of the motion. True, we have held, that no notice was necessary in order to authorise a judgment nunc pro tunc. [Allen & Dean v. Bradford, & Shotwell, 3 Ala. Rep. 281, and cases there cited,] or to obtain leave to substitute papers in a cause for those which have been lost. [Wilkerson, et dl. v. Branham, at this term.] In the first case, the motion is founded on matter of record, and is intended to give effect to a previous order of the court; in the latter to give to the plaintiff the benefit of his judgment, by putting the record in the same condition in which it wa,s when the judgment was rendered; the legal intendment in both is, that the defendant is in court to gainsay the motion, if be thinks proper. The motion in the presentí cas© proposed something more, it was to adjudge the defendents liable to pay a sum of money beyond what was- determined by the judgment; it was not intended to perfect that which was merely incomplete, or to substitute lost papers, and the cases referred to* are dissimilar not only in'their facts, but in principle also. [Baylor v. McGregor and Darling, 1 Stew’t and Porter’s Rep. 158,] is in principle analogous to the present. There,, a motion was* made to direct the sheriff to enter a credit on an execution, and to compel satisfaction of the judgment to be enteied of record. The only notice to the adverse party, was an entiy on the motion* docket, and this, it was holden, did not warrant the implication,, that the defendant was advised of what the court wras asked to> do. In the case at bar, the. order gives to the plaintiff, for the sheriff’s benefit, an execution for a sum beyond what the judgment authorised; it was in point of fact equivalent to the rendition of a distinct and independent judgment, and upon general principles required that the notice should have preceded it. The-mere entry upon the motion docket, is not a notice of what it imports, except as between parties, who in legal contemplation, are in court.

The legal inference from the judgment upon the supersedeas, is¡ not that it was dismissed after a controversy upon the facts, but' the form of the entry very clearly indicates, either that the peti-tition, assuming it to be true, did not authorise the court to quasi® the execution, or that the order to tax half commissions, made at a previous term, was conclusive upon the court. . From what we have said, it is clear, that the facts stated in the petition show the order to re-tax costs (as it has been inappropriately called,) was unauthorised by law. But it is supposed that if this be conceded the inference does not follow that the supersedeas should have been sustained, but the legal presumption is, that the order to tax costs was decisive of all the facts stated in the petition, and if the defendants are aggrieved, they should have appealed from that •order. Without stopping to consider whether this reasoning can be sustained in a proper .case, we are satisfied that it is inconclusive in the one now before us. The order was a proceeding •coram nonjudice, for the reason that the defendants had no notice that it would be moved for. It was made át a time when the court had no jurisdiction over the defendants, or the subject, for .the want of that indispensable prerequisite to the action of «courts, viz: a notice direct or implied, to the party sought to be charged with a debt or duty. This being the case, it was merely void, and afforded no warrant for an execution to issue. Ex 3>arle, Sanford, at this term.

The reference of the petition to the execution, if nothing else, brought it to the view of the circuit court without its production; Sn fact it became part of the record of the prooceeding by super-sedeas, and could not be made more so, either by a bill of exceptions, or an express order of court. [Lunsford, et al. v. Richardson & O’Neal, at this term.]

In respect to the argument, that the supersedeas was only intended to suspend the execution until court, that the defendants ishould have moved to quash it, and cannot now object (as no such ¡motion was made,) that the supersedeas was discharged, we are of opinion that it is not defensible. The judgment directing that the defendants shall take nothing by their supersedeas, is equivalent to a declaration that the execution should be enforced. No specific motion to quash, was necessary by the defendants, their petition brought the matter before the court, and was in itself a motion to that effect. [See Gates v. McDaniel, 3 Porter’s Rep. 356.]

That the supersedeas was properly granted, will not admit of 1 ¡serious question since the decision in Lockhart v. McElroy, at the last term. But if irregularly awarded, the court even then should not have dismissed it, but treated the petition as a motion to quash the execution. [Gates v. McDaniel, supra.]

Although it is inferrable that the order to tax commissions was made at the sheriff’s instance, we, have not thought necessary to remark on it, in that point of view; for if the facts stated in the petition are true, there can be no doubt but the levy of the execution was unjustifiable in law, and that no commissions are due therefir.

We have only to add that the judgment of the circuit court is reversed, and this court, proceeding to render such judgment as should have been rendered by that court, directs that the execution in question be quashed, without prejudice to the plaintiffs right .to proceed on their judgment.