O'Shea v. Kavanaugh

• Decision Date: 22 July 1902
• Docket Number: 11,528
• Citation: 91 N.W. 578,65 Neb. 639
• Parties: THOMAS O'SHEA ET AL. v. D. C. KAVANAUGH ET AL
• Court: Nebraska Supreme Court

91 N.W. 578

65 Neb. 639

THOMAS O'SHEA ET AL. v. D. C. KAVANAUGH ET AL

No. 11,528

Supreme Court of Nebraska

July 22, 1902

ERROR from the district court for Platte county. Tried below before HOLLENBECK, J. Reversed.

REVERSED.

M. J Moyer, for plaintiffs in error.

Reeder & Albert, contra.

KIRKPATRICK C. HASTINGS and DAY, CC. concur.

OPINION

KIRKPATRICK, C.

This is an action brought in the district court for Platte county by Thomas O'Shea and Willis McBride, against D. C Kavanaugh, sheriff, and certain others who were sureties on his official bond, for the recovery of certain costs paid to the sheriff, which it is claimed were illegal, and for the recovery of the fifty-dollar penalty provided by statute for receiving fees in excess of those authorized by statute. Plaintiffs in error in their petition allege that they had brought suit for foreclosure of a mortgage in the district court of Platte county, which had progressed so far that a decree had been entered foreclosing the mortgage, upon which an order of sale had been issued and placed in the hands of the sheriff, defendant in error Kavanaugh; that said sheriff had proceeded to advertise the property upon which the decree of foreclosure was had; that some time before the day of sale plaintiffs entered into an agreement with the defendant in the foreclosure case, by the terms of which a private sale was had of the lands described in the decree to an outside party, who was to pay a certain amount of cash and satisfy certain incumbrances, and give security for the remainder of the purchase price; that in accordance with this arrangement the sale was actually made to a third party, who, it is alleged, paid the money to plaintiffs in error in accordance with the agreement, and that they accordingly satisfied the decree, and paid to the clerk of the district court for the use of the clerk and sheriff the costs in the foreclosure case; that by the terms of the agreement made with the defendant in the foreclosure case plaintiffs in error were to pay all the costs of the foreclosure, which they did; that defendant in error Kavanaugh charged and collected from plaintiffs in error, as his fees in said foreclosure case, the following items: Serving notices, $ 1.50; certificates of liens, $ 3; levy, $ 1; calling appraisers, $ .50; swearing appraisers, $ .50; fees of appraisers, $ 1; mileage of appraisers, $ .20; copy of appraisement, $ 1; advertisement of sale, $ 1; costs of publication, $ 9.25; commission on judgment, $ 29.47; return of order of sale, $ 1; mileage, $ 3.30,--making a total of $ 52.17. Defendants in error in their answer admit that Kavanaugh, as sheriff, had placed in his hands an order of sale for execution, as alleged, and deny generally all the other allegations of the petition. Trial was had to a jury, which resulted in a verdict and judgment for defendants in error, to reverse which the case is brought to this court upon error. It is alleged that the court erred in the giving and refusal to give certain instructions requested by plaintiffs in error, and that the verdict is not sustained by sufficient evidence.

The several assignments of error resolve themselves into the question whether under the evidence the fees charged and collected by Kavanaugh as sheriff were legal. The facts disclosed by the record, briefly stated, are as follows: On January 27, 1896, an order of sale was issued upon a decree of foreclosure in favor of plaintiffs in error, was delivered to Kavanaugh as sheriff, and on January 30, 1896, he duly advertised the land to be sold March 2d, 1896. On February 5, 1896, plaintiffs in error entered into an agreement with the defendant in the foreclosure case for the sale of the premises to one Schueth, and on February 29, two days before the date set for the sale, Willis McBride appeared at the office of the clerk of the district court with a prospective purchaser of the land, and asked the sheriff to figure up his costs, and hand a statement either to McBride or the clerk of the court. The evidence is conflicting as to just what occurred in the office of the clerk, McBride claiming that the purchaser paid the money direct to him, and that he satisfied the decree and paid to the clerk the costs in the case, while the purchaser of the land and the sheriff and the clerk swear that the money was paid to the clerk by the purchaser, and by the clerk paid over to McBride except a sufficient amount to pay the costs in the case. It is admitted, however, that the clerk made no entry upon the records of his office of the receipt or disbursement of the money. The sheriff made returns of the order of sale after the satisfaction of the decree.

It is claimed by plaintiffs in error that the following items of costs were in excess of the fees allowed by law, viz serving notice, $ 1.50; for copy of appraisement, $ 1,-- which latter charge it is claimed should have been but 25 cents. For advertising sale, the sheriff charged and collected $ 1; which charge, it is claimed, should have been but 50 cents. The sheriff charged for levy of order of sale $ 1, and for return of order of sale $ 1. It is contended that he was entitled to $ 1 for levy and return, but not $ 1 for the levy and $ 1 for the return. It is further claimed that the charge of $ 29.47 charged as commission upon money due upon the decree, is illegal. It is the settled rule in this state that an officer can charge only such fees for the performance of services as are allowed by law, and...