Greehn v. Shumway

Hayne, C. The case of Shumway v. Leakey, just decided, was an action under section 4181 of the Political Code, to recover money in the sheriff’s hands which he had refused to pay over to the party entitled. No order had been made fixing the amount of the fees, and upon that ground it has just been decided that the sheriff was not entitled to retain what he claimed as his fees out of the money in his hands. Pending the trial of said case, the sheriff made a motion for an order allowing his fees. Shumway (defendant in the attachment suit, and plaintiff in the suit above-mentioned) objected, “on the ground that such proof was irrelevant, and that the court had no jurisdiction to hear, or settle, or allow the said bill of expenditures after the same. had been paid. The said objection was sustained, and the motion denied by the court; to which ruling counsel for said sheriff duly excepted.”

The sheriff attempts to make this action of the court the subject of an appeal.

If the court had acted upon the application, and made an order allowing or disallowing, the fees, it w,ould then be a question whether such order was appealable. It is apparent, however, that the court simply refused to take any action in the matter, one way or the other. And [265]we think it clear that this “ order ” is not appealable. If the sheriff has any remedy, it is by mandamus to the proper court to take action in the matter.

The order not being appealable, there is nothing before the court.

Foote, 0., and Belcher, 0. 0., concurred. The Court. For the reasons given in the foregoing opinion, the proceedings upon attempted appeal are dismissed.