Appeal from Sixth Judicial Court, Humboldt County; James A. Callahan, Judge.
Thomas E. Powell, for Appellants.
Warren & Hawkins, for Respondent.
By the Court, Ducker, J.:
The plaintiff in the court below, respondent here, brought this action to recover from S. G. Lamb, as sheriff of Humboldt County, and his bondsmen, the sum of $1,040.93, with interest thereon from December 21, 1918, and costs.
Appellant's demurrers to the complaint were overruled and upon failure to answer within the time allowed by the court, judgment was entered for the amount stated against the appellants. From the judgment entered this appeal is taken.
1. The facts out of which this action arose are substantially as follows: Respondent, who was the holder and owner of a note and mortgage given to it to secure part payment on the purchase price of certain lands situate in Humboldt County sold by respondent to one W. H. Johnson, obtained a decree of foreclosure. Pursuant to the judgment, decree, and order of sale said sheriff duly advertised and sold the mortgaged premises to respondent for the sum of $136,291, the amount found to be due and owing to the respondent in the foreclosure proceedings.
The sheriff demanded from respondent for his services the sum of $1,116.63. This amount included the sum of $1,040.93 which he claimed as commissions under the statute hereinafter discussed. Respondent tendered to the sheriff and offered to pay the sum of $74.70, the total amount of costs, expenses, and fees claimed by him exclusive of commissions, and demanded a certificate of sale of the property sold to him. The sheriff declined to accept the amount tendered him and refused to execute and deliver such certificate of sale until the full sum claimed by him was paid; whereupon the respondent paid him under an acknowledged protest the sum of $1,040.93 claimed as his commissions and obtained a certificate of sale.
The clause of the statute under which the sheriff claims these commissions, and the clauses immediately preceding and succeeding it, read:
For making and posting notices, advertising for sale, on execution or order, any judgment or order of sale, not to include the cost of publication in a newspaper, one dollar and fifty cents; for commissions for receiving and paying over money on execution or process where lands or personal property have been levied on, advertised and sold, on the first five hundred dollars, three per cent; not exceeding one thousand dollars, but over five hundred, one and one-half per cent; and on all sums over fifteen hundred dollars, three-fourths of one per cent; for commissions for receiving and paying over money on execution without levy, or when the lands or goods levied on shall not be sold, one-half of one per cent. Section 2009, Revised Laws of Nevada.
The sheriff did not act under an execution and made no levy upon the property, but, as stated, advertised and sold it pursuant to the decree and order of sale issued and made in the foreclosure proceedings. In fact, a levy for the purpose of dedicating the property to the purpose of the judgment, if made, would have been a superfluity; for the lien on the property had already attached by reason of the mortgage contract between the parties. Freeman on Executions (2d ed.) vol. 2, sec. 280.
As it is conceded that no levy was actually made or attempted, the question of even a constructive levy cannot arise. The sheriff claims commissions under the second clause of the statute cited. The question for determination is therefore thus presented: Is a sheriff legally entitled to commissions for receiving and paying over money on the sale of real property sold pursuant to a decree and order of sale made upon the foreclosure of a mortgage?
The learned trial court decided this question in the negative, and in his written decision which appears in the record, held that by the terms of the statute the class of services wherein the sheriff is allowed to charge the commissions thus authorized is limited to where lands have been levied on, advertised and sold. We think the court was correct in this conclusion, and as the
reasoning by which it is reached is clear, concise, and logical, we have adopted a portion of the decision which deals with the intent of the legislature. The trial court, after pointing out that the sheriff fee act was first enacted in 1861 (Stats. 1861, p. 247), and again in 1865 (Stats. 18641865, p. 336), and lastly in 1883 (Stats. 1883, p. 59), and that the first clause of the statute we have quoted has remained practically unchanged by ...