Ehlers v. Gallagher
| Decision Date | 29 March 1946 |
| Docket Number | 32027. |
| Citation | 22 N.W.2d 396,147 Neb. 97 |
| Parties | EHLERS v. GALLAGHER, Sheriff, et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. In all actions against sheriffs or other officers for failure to return writs of execution, etc., the inquiry is permitted whether the debt could have been collected, and whether its collection has been prejudiced by the acts of the defendant.
2. The actual loss sustained by the plaintiff in the value or availability of his security by reason of the act or negligence of the defendant is the measure of his damage.
3. In order to show his damages the burden is upon the plaintiff to establish that there was property subject to levy which the officer failed to seize, and the value thereof.
4. It is well settled in this state that an officer can charge only such fees for the performance of services as are allowed by law, and that services performed by an officer for which the statute does not expressly authorize a charge must be performed gratuitously.
5. Under our statute, which provides that a fee of one dollar may be charged and collected for 'levying writ of execution and return thereof,' a sheriff, in whose hands an execution has been placed for service, cannot charge a fee of fifty cents for making a return thereto when no levy has been made thereunder.
6. Where there is a want of any power in the officer to enforce payment, if refused, and payment is made voluntarily, with full knowledge of the facts, and at most only under a mistake of law, the fees paid cannot be recovered, there being no extortion.
William A. Ehlers, pro se, and E. C. Finlay, both of Omaha, for appellant.
Cook & Cook and Wm. H. Lamme, all of Fremont, for appellees.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER CHAPPELL and WENKE, JJ.
This action was commenced in the district court for Dodge County by William A. Ehlers, as plaintiff, and against John J Gallagher, the sheriff of Dodge County, and the Sun Indemnity Company, a corporation, as defendants.
The purpose of the suit is set forth in the prayer of the plaintiff's petition as follows:
The trial court found generally for the defendants and against the plaintiff and dismissed plaintiff's action. After his motion for new trial had been overruled the plaintiff appealed.
During all of the time material to the matters here involved the appellee John J. Gallagher was the sheriff of Dodge County and the appellee Sun Indemnity Company, a corporation, was the surety on his official bond. These appellees will herein be referred to as sheriff and surety.
The record discloses that on June 18, 1937, in the county court of Dodge County, the appellant obtained a judgment against William Siercks and Julius Siercks, Jr., for the sum of $766.46 with interest and costs and on which there was due at the time this action was commenced the sum of $1,061.81.
On June 9, 1942, the appellant, by letter dated June 8, caused an execution on this judgment to be issued out of the county court of Dodge County and delivered to the sheriff. This letter, which is addressed to the county judge, was shown to the sheriff at the time of the delivery of the execution to him. It is as follows:
'I am enclosing herewith an execution prepared in this matter together with my check for $.75 to cover the costs of your office for issuing same.
The sheriff therefore made no effort to make a levy. However, by a letter dated June 10, 1942, the sheriff advised the appellant as follows:
Appellant replied by letter dated June 13, 1942, that he found no statutory authority for the collection of such a fee and did not remit.
Thereafter, on June 15, 1942, the sheriff again advised the appellant as follows:
On June 16, 1942, appellant replied to the same effect as of June 13, 1942, and did not remit. No further communications were had between the parties and the sheriff did not make a return within 30 days as provided in the execution.
On November 27, 1943, the appellant filed his affidavit for garnishment and caused garnishment summons to be issued and served on the School Board of the city of Fremont. Motions to quash were filed by the School Board and also the judgment debtor, Julius Siercks, Jr., on the grounds that the judgment was dormant as no execution had been issued and returned within five years. These motions were sustained on April 6, 1944, and the garnishment proceedings quashed and dismissed.
On December 31, 1943, the appellant, after the motions to quash had been filed, went to the sheriff's office and paid, under protest, the fifty-cent fee demanded by the sheriff who then made his return to the execution as of that date to the effect that,
No evidence was offered by appellant to show that the judgment debtors had property subject to execution. Appellant testified that prior to having the execution issued he made investigation for that purpose and from such investigation found they had none.
Under this situation what is the liability of the sheriff and surety under the provisions of section 25-1545, R.S.1943? This statute provides in part as follows: 'If any sheriff or other officer shall refuse or neglect to execute any writ of execution to him directed which has come to his hands; * * * or shall neglect to return any writ of execution to the proper court, on or before the return day thereof; * * * such sheriff or officer shall, on motion in court and two days' notice thereof in writing, be amerced in the amount of said debt, damages and costs, with ten per cent thereon, to and for the use of said plaintiff or defendant, as the case may be.'
The execution issued by the county court on June 9, 1942, directed the officer to make return thereof within 30 days as provided by section 27-1612, R.S.1943, made applicable by section 24-533, R.S.1943.
'An officer's return, within the meaning of the statute relating to the service of process, includes not only the certificate of service, but also the delivery of the writ to the office from which it issued.' Graves v. Macfarland, 58 Neb. 802, 79 N.W. 707.
Under section 23-1701, R.S.1943, in the absence of instructions from the owner of the judgment, or his attorney, not to do so, 'It is the duty of the sheriff to serve or otherwise execute, according to law, and return, writs or other legal process issued by lawful authority, and to him directed or committed, and to perform such other duties as may be required of him by law.' Under section 23-1702, R.S.1943, for a disobedience of such command, '* * * he is further liable to the action of any person injured thereby.'
In Crooker v. Melick, 18 Neb. 227, 24 N.W. 689, under section 513 of the civil code, which is now section 25-1545, R.S.1943, we held:
'Section 513 of the Civil Code gives a more expeditious remedy against sheriffs and other officers in certain cases, but gives no additional right, * * *.
'In all actions against sheriffs or other officers for failure to return writs of execution, etc., the inquiry is permitted whether the debt could have been collected, and whether its collection has been prejudiced by the acts of the defendant.
'The actual loss sustained by the plaintiff in the value or availability of his security by reason of the act or negligence of the defendant is the measure of his damages.'
We discussed the question in the opinion as follows:
'In the case at bar,...
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