Shumway v. Leakey

Hayne, C. —This is an action under section 4181 of the Political Code, which provides, in relation to a sheriff, that “ if he neglects or refuses to pay over on demand to the person entitled thereto any money which may come into his hands by virtue of his office (after deducting his legal fees), the amount thereof, with twenty-five per cent damages, and interest at the rate of ten per cent per month from the time of demand, may be recovered by such person.”

The defense of the sheriff was, that after deducting his legal fees there remained only $76.66, which he duly tendered to the plaintiff, but which plaintiff refused to receive. The fees which he claimed the right to deduct were keepers’ fees, etc., upon an attachment in the cause. The controversy turns upon the right to deduct these fees.

The provision of the statute in relation to the fees of the sheriff of Lassen County is as follows: —

“ For his trouble and expense in taking and keeping possession of and preserving property under attachment or execution, or other process, such sum as the court [262]shall order, provided that no more than three dollars per diem shall be allowed to a keeper.” (Laws 1869-70, p. 158.)

With reference to similar provisions, it is the settled rule that unless the court makes such order the sheriff has no right to the fees. (Bower v. Rankin, 61 Cal. 108; Lane v. McElhany, 49 Cal. 424; Geil v. Stevens, 48 Cal. 590.)

Now, in this case there was no such order. The findings state that the sums claimed as fees were paid by the sheriff “ without at any time obtaining an order of said court, allowing, fixing, or authorizing such payment, or any portion thereof.” And this finding is sustained by the evidence.

The objection to the offer of defendant to prove that before paying out the fees “ he had asked the Honorable J. W. Hendrick, superior judge, about paying the bills, upon meeting said judge upon the street, and that said judge told him to pay them,” was properly sustained. What the judge told the defendant on the street is not an order. Even if the judge had promised out of court to have the order entered, it would not have amounted to an order. (Campbell v. Jones, 41 Cal. 518.)

Nor was there error in the denial of the defendant’s motion, made after the plaintiff had rested his case, to have the court then make an order allowing the fees. Such order was to be made, if at all, in the attachment suit. The motion was not a part of the case before the court, and hence cannot be considered on this appeal.