THOMAS W. LANE v. W. H. McELHANY, 49 Cal. 421

By the Court, McKinstry, J.: The general demurrer to the complaint was properly overruled. The Court below did not include in its judgment the six dollars paid to the County Clerk, and, as we shall see; the plaintiff was not entitled to recover the keeper’s fees. But the law fixes the sums which the Sheriff is authorized to charge for “levying execution,” “advertising” and “mileage,” so that it was not necessary to allege the value of those services.

Nor was a demand a prerequisite to maintaining this action; the complaint alleges a special request by the defendant, and this is in effect an allegation of a specific contract that defendant should pay the legal fees, including such sum for mileage as should equal the statute allowance. The defendant was liable in the first instance for the mileage, levying of execution and advertising; if the amount or a portion of it was collected of the defendant in the execution, this could have been pleaded and proved by the present defendant as a complete or partial defense.

The objection to the proof of value of the service of “keeping” the property should have been sustained. There was no averment in the complaint as to what plaintiff reasonably merited for such service, nor was there any averment or evidence of a certificate by the Court from which the execution issued, fixing am allowance for keeper’s fees. (Geil v. Stevens, 48 Cal. 590.) Cause remanded, with directions to the Court below to modify the judgment so that the recovery of the plaintiff shall be for the sum of twenty-four dollars only. Remittitur forthwith. Mr. Justice Crockett did not express an opinion.