Siler v. Blake

• Decision Date: 30 June 1838
• Citation: 20 N.C. 90
• Parties: JESSE R. SILER v. ARTHUR BLAKE, ADMR. OF DANIEL BLAKE.
• Court: North Carolina Supreme Court

20 N.C. 90

JESSE R. SILER

v.ARTHUR BLAKE, ADMR. OF DANIEL BLAKE.

SUPREME COURT OF NORTH CAROLINA

JUNE TERM, 1838

Sheriff's Commissions—Appeal.

1. A sheriff is not entitled to commissions upon a fieri facias, though the defendant pay the money to the plaintiff while the fi. fa. is in his hands, of at the time the defendant held no property upon which the fi. fa. could be levied.

2. An appeal will not be sustained where there is no judgment between the parties, nor at the instance of one who is not a party to the cause.

THIS was a scire facias to subject the defendant's own goods to the payment of a judgment obtained against him for a debt of his intestate. No pleas were put in by the defendant, but certain facts agreed were submitted to his Honor, Judge Settle, at Macon, on the last Fall circuit. The facts were as follows:

An execution issued upon the judgment obtained as above stated, directed to the sheriff of Buncombe County, commanding him to make the sum mentioned in said judgment, of the goods and chattels of Daniel Blake, deceased, in the hands of his administrator, Arthur Blake. There were no goods and chattels of the intestate in the hands of the administrator on which the execution could be levied, but the proceeds of the goods and chattels of the intestate sold by the administrator were then in his hands. A few days previous to the return day of the execution, and while the fieri facias was in the hands of the sheriff, the administrator paid to the plaintiff the amount of the debt, the administrator agreeing to pay all costs. This payment was unknown to the sheriff at the time he returned the execution. The return was that there was no property to be found subject to the execution. Upon these facts it was submitted to the court whether the sheriff of Buncombe was entitled to commissions upon the money paid by the defendant to the plaintiff. His Honor decided that the sheriff was not entitled to commissions, whereupon the transcript stated there was a judgment for the defendant, from which an appeal was prayed and granted.

GASTON, J. The decision of the court below on the question of commissions is, as we think, correct. The act of assembly fixing the compensation of sheriffs (1 Rev. Stat., ch. 105, sec. 21), after giving specific fees for specific services, declares a sheriff entitled to receive "for selling the estate of an intestate, to be allowed by the court, not exceeding two and a half per cent; for executing a warrant for distress, or an execution

against the body, two and a half per cent, and for all moneys collected by him by virtue of any levy, two and a half per centum, and the like commissions on all moneys that may be paid the plaintiff by the defendant while such precept is in the hands of the sheriff." The difficulty in construing the last clause is in ascertaining the meaning of the words "such precept." The reference is to the execution meant in the clause immediately preceding under the words "collected by virtue of any levy"—and as express provision had been made for commissions in executing a warrant of distress and an execution against the body, we may be satisfied that neither of these was therein...