Berry v. Kiefer

• Decision Date: 13 May 1913
• Citation: 133 P. 1126,38 Okla. 377,1913 OK 302
• Parties: BERRY, SHERIFF, v. KIEFER ET AL.
• Court: Oklahoma Supreme Court

133 P. 1126

38 Okla. 377, 1913 OK 302

BERRY, SHERIFF, v. KIEFER ET AL.

Supreme Court of Oklahoma

May 13, 1913

Rehearing Denied July 22, 1913.

Syllabus by the Court.

By reason of section 6, chapter 69, Sess. Laws 1910, a sheriff may charge and collect "commission for collecting money on a sale," under special execution made by virtue of an execution of order of sale under a decree of foreclosure where the purchase price is collected by the sheriff; but where the amount for which the property was sold does not exceed the judgment, and the judgment creditor or mortgagee is the purchaser, and the amount of the purchase price is applied as a credit upon the judgment, the sheriff is not entitled to any commission thereon.

Error from District Court, Creek County; Wade S. Stanfield, Judge.

Action by John D. Kiefer against Ella Blackwelder and another. A charge of commission on a judicial sale, included in the bill of cost filed by John W. Berry, sheriff, was disallowed, and he brings error. Affirmed.

Hughes & Miller, of Sapulpa, for plaintiff in error.

McDougal & Lytle, of Sapulpa, for defendants in error.

HAYES C.J.

This cause comes to this court on appeal from an order of the lower court, sustaining a motion of defendants in error to retax the costs in a cause in which he was plaintiff, and Ella Blackwelder and John H. Blackwelder were defendants. The proceeding in the lower court was for foreclosure of a mortgage on real estate. Under the decree of foreclosure, a special execution or order of sale was issued, which was served by plaintiff in error herein as sheriff of the county and the property was sold at public auction to defendant in error, John D. Kiefer, the mortgagee, for the sum of $2,500 which sum was credited upon his judgment, and no part of the same was collected in cash by plaintiff in error, who will hereinafter be referred to as the sheriff. In making his return the sheriff included in his bill of cost a charge of $33 as commission. Upon defendant in error's motion to retax the costs, this charge was disallowed.

The only question presented involves a construction of a portion of section 6, chapter 69, Session Laws 1910. That section provides the fees that may be charged and collected by sheriffs and constables. One of the charges provided for is "Commission for collecting money on sale: First $300, 3 per cent.; next $200, 2 per cent.; all in excess of $500, 1 per cent." It is the contention of plaintiff in error that he is entitled to charge and collect the commission on the amount of the sale when the judgment mortgagee or creditor is the purchaser, and the amount of the bid is credited upon the judgment, as well as when he collects the purchase price in cash and returns same to the court. In view of the other provisions of the statute, we think this contention cannot be sustained. It was contemplated by the statute to provide compensation for each service the sheriff is required to render. Other provisions of the same section fix a fee for his serving any order of sale and for making return thereof. It also provides a fee for summoning appraisers and appraising the property, for selling or offering for sale the property, and for making the deed and the acknowledgment thereto. For every service he is required to or may perform in connection with making a sale, a specific sum as compensation therefor is provided. The provision for the commission is that it shall be "for collecting money on sale." When no money is collected there is no service rendered for which this commission could be charged....