Kelly v. Barnet

RICHARDS, J.

This is an appeal from a judgment entered after an order sustaining a general demurrer to the complaint, the plaintiff declining to amend.

The action was in the nature of an application for a writ of mandate to compel the defendant, as sheriff of Alameda County, to make, execute, deliver, and record a certificate of sale upon execution of certain real property, in favor of the plaintiff as the purchaser thereof at such sale. The following are the essential facts set forth in plaintiff’s application for the writ: The plaintiff, as trustee in bankruptcy of the estate of James Treadwell, brought an action against one John Treadwell to recover the sum of about forty-nine thousand dollars alleged to be due by the latter to said estate -in bankruptcy; and in said action caused an attachment to be levied upon certain real property in the county of Alameda. The plaintiff obtained judgment in said action for the sum of $49,719.77, and thereupon caused a writ of execution to issue and be levied upon said property. At the sale by the sheriff under said writ plaintiff was the only bidder, and he bid in the property for the full sum of his judgment and costs, which

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then aggregated the sum of $50,400.43. At the time of the levy of the writ of execution plaintiff paid the defendant as sheriff the sum of twenty-five dollars on account of the costs and expenses of such levy and sale; but he has-not paid or tendered to the defendant, as such sheriff or otherwise, any other sums of money on account of said sale or of the sum bid by the plaintiff as the purchaser thereat; but in lieu thereof he has tendered to the defendant, as sheriff and as the officer conducting said sale, -a receipt for the full amount of plaintiff’s bid for the property, and has thereupon demanded that the defendant, as such sheriff, make, issue, deliver, and cause to be recorded a certificate of such sale in plaintiff’s favor. The defendant, as sheriff, declines to do this for the reason that his commissions upon the sale, amounting to the sum of $258.93, have not been paid.

The appellant’s contention is that, being the judgment creditor in the action wherein the execution was issued and the execution sale conducted, and having bid in the property for the amount of his judgment and costs, he was not required to go through the formality of paying over to the sheriff the amount of his bid in cash in order to have the sheriff repay it to him in satisfaction of his judgment; and that, in lieu of making such payment, he was entitled to hand the sheriff a receipt in full of the amount due on the judgment as the equivalent of the cash to be paid on his bid; and hence that the sheriff, not being entitled to receive any cash, and not actually receiving or collecting any, was not entitled to charge commissions on the collection upon execution of the amount due on the judgment.