O'Shea v. Kavanaugh

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

65 Neb. 639
91 N.W. 578

O'SHEA ET AL.
v.
KAVANAUGH ET AL.

Supreme Court of Nebraska.

July 22, 1902.

Syllabus by the Court.

1. An officer can only charge such fees for the performance of official services as are authorized by statute, and any charge in excess of the fees provided by statute is illegal and unauthorized.

2. Under the provisions of section 5, c. 28, Comp. St., a sheriff is authorized to charge commission only upon moneys actually received and disbursed by him; and where the decree is satisfied prior to sale, and the money is paid directly by the execution debtor to the creditor, a commission charged by the sheriff on such money is illegal and unauthorized.

3. The fact that a litigant against whom the sheriff has charged and collected fees not authorized by law has a remedy by motion to retax costs does not deprive him of his right to proceed against the sheriff and his bondsmen, under section 34, c. 28, Comp. St., for the recovery of the $50 penalty therein provided.

4. A cause of action in favor of a copartnership against a sheriff and his bondsmen to recover the penalty provided by section 34, c. 28, Comp. St., does not abate by the dissolution of the copartnership, but survives to the individual members of such copartnership.

Commissioners' opinion. Department No. 1. Error to district court, Platte county; Hollenbeck, Judge.

Action by Thomas O'Shea and others against D. C. Kavanaugh and others. Judgment for defendants, and plaintiffs bring error. Reversed.

[91 N.W. 578]

M. J. Moyer, for plaintiffs in error.

Reeder & Albert, for defendants in error.

KIRKPATRICK, C.

This is an action brought in the district court of 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 $50 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

[91 N.W. 579]

following items: Serving...