Peery v. Wright

• Decision Date: 05 June 1896
• Docket Number: 715
• Citation: 13 Utah 480,45 P. 46
• Court: Utah Supreme Court
• Parties: D. H. PEERY, RESPONDENT, v. HEBER WRIGHT, APPELLANT

45 P. 46

13 Utah 480

D. H. PEERY, RESPONDENT, v. HEBER WRIGHT, APPELLANT

No. 715

Supreme Court of Utah

June 5, 1896

Appeal from the district court, Second district, Weber county. Hon H. H. Rolapp, Judge.

Action by D. H. Peery against Heber Wright, sheriff, to compel him to give to plaintiff a certificate or bill of sale of property sold by the sheriff in satisfaction of judgment. The property purchased passed to plaintiff, and the amount credited on the judgment, it not being sufficient to liquidate the same, and consequently no money passed to the sheriff. From a judgment in favor of the plaintiff defendant appeals.

Affirmed.

A. J Weber, for appellant.

The supreme court of Washington has decided that under the statute of that state such commissions are not proper charges. State ex rel. Thompson v. Prince, 37 Wash 291; State ex rel. Canover v. Pugh, 38 P. 79.

The Washington statute, however, differs from ours, and uses the words "on all moneys actually made and paid."

A case in point and which sustains the position of appellant is Sharvey v. Central Vermillion Iron Co. et al. (Minn.), 58 N.W. 864.

The execution creditor bids as any one else does.

As the court well says in Sharvey v. Iron Company: "Whatever he acquires by the execution and sale is to be deemed a collection, not only as between him and the judgment creditor, but as between him and the sheriff.

"If this were not so, execution creditors might, in many cases, profit by defeating the sheriff's just claim to fees. In this case the property was struck off to the defendant at $ 250,000.

"Suppose a third person bid that amount and the defendant had bid $ 50 more, that being the highest bid, the sheriff would have been obliged to strike off the property to it, and, if he were not entitled to fees because the defendant bid off the property, it would make a very handsome profit by its raise of $ 50. There was a collection within the meaning of the statute."

Was there not a "receiving and paying over money" by the sheriff of Weber county to plaintiff within the meaning of the Utah statute?

Richards & MacMillan and E. E. Pratt, for respondent.

BARTCH, J. ZANE, C. J., and MINER, J., concur.

OPINION

BARTCH, J.:

This action was brought against the defendant, who is the sheriff of Weber county, Utah, to compel him to make and return an order of sale, and to issue and deliver to the plaintiff a bill of sale of certain property, sold under execution. In addition to the necessary formal matters, the complaint states, as facts, substantially, that the defendant, as sheriff, sold, under execution, certain shares of the capital stock of a Utah corporation; that the stock was bid in by the plaintiff, who was the judgment creditor; that the amount of the bid was not paid to the sheriff in money, but that plaintiff directed the officer to credit the amount thereof on the judgment; that there was a certain sum still due on the judgment as a deficiency; that the plaintiff paid all costs, except $ 57, which the sheriff claimed as commission on the sale; and that the defendant refused, and still refuses, to issue a certificate or bill of sale for said property, unless he be paid such commissions. To this complaint the defendant interposed a demurrer, on the ground that it does not state facts sufficient to constitute a cause of action. The demurrer was overruled, and, the defendant standing on the same and refusing to answer, the court entered judgment in favor of the plaintiff, and directed a writ of mandate to issue, commanding the defendant, among other things, to issue to the plaintiff a certificate of sale of the property in question. Thereupon the defendant appealed to this court.

The only material question presented is whether the defendant, as...