Fletcher v. Morrell

• Decision Date: 15 November 1889
• Citation: 78 Mich. 176,44 N.W. 133
• Court: Michigan Supreme Court
• Parties: FLETCHER et al. v. MORRELL.

44 N.W. 133

78 Mich. 176

FLETCHER et al. v. MORRELL.

Supreme Court of Michigan

November 15, 1889

Original application for mandamus to compel M. A. Morrell retiring sheriff, to turn over certain property.

Chas. B. Lothrop, for relators. W. D Totten, for respondent.

CHAMPLIN J.

Three questions are presented on this motion. They arise out of the following facts: Morrell, being sheriff of Kalkaska county attached and took into his possession certain goods and chattels, in which writ the relators were plaintiffs. The sheriff's term of office expired December 31, 1888. Judgment in the attachment suit was recovered in August 1889. One John E. Rainbow was elected to succeed Morrell as sheriff, and after judgment was rendered, and execution was issued directed to the sheriff of the county of Kalkaska, Sheriff Rainbow demanded the property of the ex-sheriff, who refused to deliver it, claiming that he was entitled to compensation as custodian, for which he charged $400, being for 400 days, at $1 a day; and also that having served the attachment, and levied upon property in pursuance thereof, he is lawfully entitled to make sale thereof under the judgment, and that the execution should have been issued to him for that purpose.

If the ex-sheriff has no right to retain possession of the property for the purpose of sale under the final process, he would have no right to retain it because his charges for custody were not first paid. If he has any valid charges as custodian, he should make out his bill of items, and present them to the clerk or other taxing officer for taxation, or, if they are not fees allowed by statute, he should apply to the court for such allowance upon notice and motion to the parties interested. He has no right arbitrarily to fix his own price, and retain the property or money received on sale. He can only retain his fees allowed by law.

But we do not decide that a sheriff can be allowed for custody of goods levied upon, as it is not necessary to determine that question now. Bank v. Judge, 54 Mich. 305, 20 N.W 53. Whether the respondent has the right to complete the service of the attachment by a sale of the property attached depends upon a proper construction of the statutes. Section 7990, How. St., provides that the writ of attachment shall command the sheriff to attach so much of the goods, etc., as will be sufficient to satisfy the plaintiff's demand, and safely keep the same to satisfy any judgment that may be recovered in such attachment. Section 7998 enacts that the property attached shall remain in the custody of the officer serving the attachment, unless bonded as prescribed by the statute. Section 8007 provides: "When a copy of the attachment shall have been personally served on the defendant, * * * [which was this case,] judgment shall be rendered, and execution shall issue thereon, in the same manner, and with the like effect, as in a suit commenced by summons, in which the summons shall have been returned personally served, except that by virtue of such execution the officer to whom the same shall be directed and delivered may sell any property attached in the suit, and remaining in the hands of the officer who served the attachment, wherever the same may be in this state." The statutes also provide that, upon the election of a new sheriff, the former sheriff shall deliver to his successor "all executions, attachments, and final process then in his hands, except such as the said former sheriff shall have executed, or shall have begun to execute, by the collection of money thereon,...