Morse v. Gibbons , 43 Cal. 377 ( 1872 )

By the Court,

Wallace, C. J.:

Du Pont had recovered judgment against Gibbons for forty-seven thousand two hundred and sixty-seven dollars, . and directing a sale of certain mortgaged premises, which are admitted to have been in value sufficient to satisfy that sum and all costs.

An order of sale had been placed in the hands of Morse, the Sheriff, who had duly advertised the sale of the premises and would have actually sold them" had not the sale been repeatedly postponed from time to time by the direction of Du Pont.

During this postponement Gibbons, paid the forty-seven thousand two hundred and sixty-seven dollars, not into the hands of the Sheriff, as he might have done, but directly to Du Pont himself, and the latter, having acknowledged satisfaction, ordered the Sheriff to discontinue further proceedings and to return the process in his hands. '

Had the payment been made to the Sheriff it is not disputed that he would have been entitled to charge against Gibbons the half commission allowed by statute for receiving and paying over money where no sale of the property has been had. (Stats. 1869-70, p. 159.)

It is said, however, that as the Sheriff did not in fact receive nor, of course, pap over this money he is not entitled to the commission. I am of opinion, however, that the payment made to Du Pont under these circumstances must be considered, for this purpose, to have been made to the Sheriff, whose official duty and interest it was to have received it had it been tendered to him. The statute has allowed the judgment debtor to reduce the commissions of the Sheriff" by one half should he pay off the judgment before sale actually made, but has not permitted him to deprive the officer of the whole compensation by ignoring him and making such payment directly to the judgment creditor.

This was the construction given by the Hew York Courts to their statutes allowing fees for serving an execution—and as subsequently amended for collecting money thereon. (Bolton v. Lawrence, 9 Wend. 435; Parsons v. Boudoin, 17 id. 14.)

Indeed any other construction of the Act would practically convert the statutory fees of the officer upon the collection of money into a mere honorarium—to be allowed or to be withheld from him at the absolute election of the judgment debtor, who could in every instance relieve himself by making payment of the judgment directly to the judgment creditor.

J udgment affirmed.