Lane v. McElhany (1874) · DecisionDepot

Lane v. McElhany

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jul 1, 1874 No. No. 2,907Published

Before: McKinstry

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Holding. The court held that the plaintiff was entitled to recover statutory fees for levying execution, advertising, and mileage, but was not entitled to recover keeper's fees absent an averment of reasonable value or a court certificate.

Issues

Whether the complaint sufficiently alleged a cause of action for sheriff's fees without stating the value of statutory services.
Whether a demand for payment was a prerequisite to maintaining the action.
Whether the plaintiff was entitled to recover keeper's fees without pleading or proving their reasonable value or a court-ordered allowance.

Disposition. Remanded with directions to modify the judgment.

Quotations verified verbatim against the opinion

“the law fixes the sums which the Sheriff is authorized to charge for “levying execution,” “advertising” and “mileage,” so that it was not necessary to allege the value of those services.”

“The objection to the proof of value of the service of “keeping” the property should have been sustained.”

Synopsis

Complaint nr Action fob Sheriff’s Fees.—In a complaint in an action brought by a Sheriff for official services in levying an execution, it is not necessary to aver the value of the services rendered, as the law fixes their value.

Idem.—In such complaint, it is not necessary to allege a demand. An allegation of a special request by the defendant, that the plaintiff should perform the services, is sufficient.

Idem.—In such complaint it is not necessary to aver that the sums due the plaintiff, were not collected by the sheriff by a sale of the property levied on.

Shebief’s Fees m Keeping Pbopebtt.—In an action by a Sheriff, to recover for his services in keeping property levied on by virtue of an execution, the complaint is insufficient which neither avers what the services were reasonably worth, nor that the Court, from which the execution issued, had certified that the amount was just and reasonable, and such certificate is the proper evidence of the value of the services.

By the Court, McKinstry, J.: The general demurrer to the complaint was properly overruled. The Court below did not include in its judgment the six dollars paid to the County Clerk, and, as we shall see; the plaintiff was not entitled to recover the keeper’s fees. But the law fixes the sums which the Sheriff is authorized to charge for “levying execution,” “advertising” and “mileage,” so that it was not necessary to allege the value of those services. Nor was a demand a prerequisite to maintaining this action; the complaint alleges a special request by the defendant, and this is in effect an allegation of a specific contract that defendant should pay the legal fees, including such sum for mileage as should equal the statute allowance. The defendant was liable in the first instance for the mileage, levying of execution and advertising; if the amount or a portion of it was collected of the defendant in the execution, this could have been pleaded and proved by the present defendant as a complete or partial defense.

The objection to the proof of value of the service of “keeping” the property should have been sustained. There was no averment in the complaint as to what plaintiff reasonably merited for such service, nor was there any averment or evidence of a certificate by the Court from which the execution issued, fixing am allowance for keeper’s fees. (Geil v. Stevens, 48 Cal. 590.)

[425]Cause remanded, with directions to the Court below to modify the judgment so that the recovery of the plaintiff shall be for the sum of twenty-four dollars only. Remittitur forthwith.

Mr. Justice Crockett did not express an opinion.

Lane v. McElhany

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