Jackson v. Siglin

Dissenting opinion by

Watson, J.:

The execution commanded the sheriff to satisfy the judgment, (Civil Code, sec. 273.) The statute further provides that he shall pay the proceeds of all execution sales to the clerk upon return of the execution, (Id., sec. 293.) And that the clerk “shall then apply the same, or so much thereof as may be necessary, in satisfaction of the judgment.” These provisions, it seems to me, attach the right to receive the proceeds of execution sales, and to charge the legal commission for disbursing them, to the office of the clerk. They cannot be diverted or intercepted before reaching his hands in the course pointed out by these provisions of the statute, without a violation of official duty on the part of the sheriff. This right of the clerk, I cannot but regard as one of the most important prerogatives of liis office, created by the express provisions of the statute, and which can be destroyed only by an exercise of legislative power. This principle is, I think, fully sustained by authority.

*100In Moore v. Gibbons, 43 Cal., 377, upon a statute which provided “for commissions for receiving and paying over money on execution, without levy, or when the lands or goods levied on shall not be sold, on the first one thousand dollars, one and one-half per cent., and one per cent, on all over that sumthe court held the sheriff entitled to the half commission allowed by the statute, although after levy and advertisement, but before sale, the execution debtor paid the amount specified in the writ, directly to the creditor therein. I quote from the opinion in the case delivered by Wallace, C. J.: “It is said, however, that as the sheriff did not in fact recewe, nor of course pay over this money, he is not entitled to the commission. I am of opinion, however, that the payment made to Du Pont, under these circumstances, must be considered for this purpose, to have been made to the sheriff, whose official duty and interest it was to have received it, had it been tendered him. The statute has allowed the judgment debtor to reduce the commissions of the sheriff by one-lialf, should he pay off the judgment before sale actually made, but has not permitted him to deprive the officer of the whole compensation by ignoring him and mailing such payment directly to the judgment creditor.” The court cite, as sustaining this view, Bolton v. Lawrence, 9 Wend. 435; and Parsons v. Boudoin, 17 Ind., 14.

The case of Tell v. The Board of Supervisors of McLean County, 43 Ill., 216, appears to me more directly in point. The statute of Illinois provides that “it shall be the duty of the county treasurer to receive all moneys belonging to the county, from whatever source they may be derived, and all moneys belonging to the state which by law are directed to be paid to him, and to pay and apply such moneys in the manner required by law.” It also provided him a commis*101sion of one per cent, for receiving and one per cent, for paying ont tbe county tax. Tbe county board of supervisors levied a special war fund tax during the years 1862, 1868 and 1864, and caused such tax to be paid over directly to a special agent, by whom it was disbursed. No part of the tax ever went into the treasurer’s hands, yet the court held it came within the definition of “county tax,” which the treasurer was entitled to receive and disburse under the law, and as it was to be presumed the officer would have done his duty if he had been permitted, he was entitled to the statutory commissions. "When it is also considered that the clerk’s commissions for this service are collected on the execution as accruing costs, and that the judgment debtor is entitled to have him satisfy the judgment on the record, when proceeds of sale sufficient for the purpose have been paid over to Mm by the sheriff, I cannot doubt that the requirement of the statute upon the sheriff to make such payment, was intended to have some meaning, and should be given some effect.

But whether the clerk, in the present instance, was strictly entitled to the commissions claimed as such, as the authorities cited seem to declare, or not, he had rights in the premises, if the view of the law I have already expressed is not mistaken, which neither the execution creditor nor the sheriff could wholly ignore, and which certainly would support a compromise, entered into in good faith, and with full knowledge of all the material facts, as seems to have been done in this case.

The appellant’s claim was not illegal. It was not prohibited by any statute, or in conflict with any principle of public policy. On the contrary, the only real objection to it was that it assumed as having been done what the law required, and the appellant had a right to demand should be *102performed, but wliicb bad in fact been omitted. It could only have been impeached for want of consideration, and the law is well settled that this became immaterial after the compromise.

I can conceive of no good reason for debarring a public officer and any person for whom he has performed official service, from afterwards making a valid compromise of a doubtful right to fees and commissions. If otherwise capable of contracting, they should be accorded the same privilege of settling their disputes over doubtful rights, to put an end to a vexatious controversy and avoid the expense of litigation, as would be allowed to private individuals under similar circumstances. For these reasons I am of the opinion that the judgment should be reversed.