Gordons v. Maupin

• Decision Date: 31 January 1847
• Citation: 10 Mo. 352
• Parties: GORDONS v. MAUPIN.
• Court: Missouri Supreme Court

10 Mo. 352

GORDONS

v.MAUPIN.

Supreme Court of Missouri.

January Term, 1847.

APPEAL FROM BOONE CIRCUIT COURT.

HAYDEN, for Appellant. 1st. That the sheriff is not entitled, by law, to a commission upon the debt and interest mentioned in the execution, because he did not receive or collect the same, nor pay over the same to the plaintiff; but, on the contrary, the same was received by the plaintiff himself and the same was paid over to the plaintiff. 2nd. That the commission allowed by our statute, is the compensation to which the sheriff is entitled for collecting, or receiving and paying money upon execution to the plaintiff, and is not designed or intended as a compensation to him for any other services rendered by him as sheriff, anterior to the collection or receiving the money. Because the statute provides and fixes his fees for such anterior services. See 11th section of the act, title Fees, pp. 497-8.

RUSSELL, for Appellee. Upon the point that the sheriff was entitled to his fees for poundage, see Allen on Sheriff, p. 353-4-5; see 5 Term R. 470; 1 Caine, 192; 9 Wend, 437; 17 Wend. 14; all of which clearly decide that he is entitled to his fees after levy, if there is a compromise, by payment, directly to plaintiff in the writ.

SCOTT, J.

In July, 1846, Maupin, the sheriff of Boone county, had an execution for a considerable amount, against the Messrs. Gordon, at the suit of Price R. Parks. This execution was levied on real estate of the appellants, which was advertised for sale. Prior, however, to the day of sale, the execution, and all costs, except the sheriff's commission on the debt, were satisfied. The sheriff, conceiving himself entitled to the commission allowed by law for collecting moneys on execution, refused to return the execution satisfied, and was proceeding to make his commission by sale, when an application was made by the Messrs. Gordon to the Circuit Court, to restr in and to compel the sheriff to return the execution satisfied. The court overruled the application, and held, that under the circumstances, the sheriff was entitled to his commission. From this opinion an appeal was taken to this court.

The statute on this subject allows to the sheriff, “for commission for receiving and paying moneys on execution, where land or goods have been levied on, advertised, and sold, three and one-half per cent. on the first two hundred dollars, and two per cent. on all sums above that sum, and one-half of such commission when the money is paid to the sheriff without a levy, or when the land and goods levied on shall not be sold.” The 29th section of the same law prescribes that this act, like penal laws, shall be construed strictly. The latter clause of the provision, allowing a sheriff commission when the property levied on shall not be sold, must be construed in reference to the first, which only allows a commission for receiving and paying over moneys, and is applicable to those cases only in which, after a levy is made, the money is paid to the sheriff himself,...