McLennan County v. John N. Graves et al., 94 Tex. 635

BROWN, Associate Justice. On the 30th day of June, 1898, in the District Court of Eastland County, McLennan County recovered a judgment of $¿5,065.16 against John N. Graves and others, foreclosing a vendor’s lien upon a body of land which had been sold by McLennan County as its public school land, which lands were described in the petition and embraced various parcels, as the original purchaser from McLennan County had sold it to other persons who were made parties defendant in the suit to foreclose. The judgment bore 8 per cent interest from date and ivas for cost against the defendants.

The decree provided for the issuance of an order of sale to the proper officer of East-land County and that the land should be sold under the order of sale in'parcels as specified and described in the judgment. The order of sale was issued on June 24, 1899, to the proper officer of Eastland County and directed the sale to be' made in the manner specified in the judgment.

The order of sale was levied upon the land on the day it was issued, but for the want of time to advertise and sell, the writ was returned and a venditioni exponas was issued to the sheriff of Eastland County under which the land was sold in the manner required by the terms of the order of sale. At the sale, McLennan County purchased fifty-six parcels of the land for sums amounting to $16,943, and five other persons each purchased a parcel of land at different prices, to wit: $200, $350, $500, $580, and $430, all of the sales aggregating the sum of $19,003.

The sheriff of Eastland County paid over to Mc-Lennan County the sum of $17,607.36, retaining as costs the sum of $1395.64. Included in the sum retained was $571.90, charged as commissions upon the money collected by the sheriff, who calculated his commission at the statutory per cent upon each sale; that is, fifty-six sales to the county and five sales to the individuals, making sixty-one different sales, whereas the county of McLennan insisted that he was entitled to receive commissions upon the entire amount and not upon the sum received from each purchaser.

McLennan County filed in the District Court of Eastland County a motion to retax the costs in the case and to require the sheriff to pay over all the money to the county, deducting nothing for costs of court or costs of sale, upon the ground that the money belonged to the school fund of the county and could not be appropriated to the payment of costs, but that McLennan County should pay the costs out of its own funds.

The trial court, without a jury, found the facts substantially as above stated and gave judgment in favor of the sheriff for all of the fees claimed by him, but directed that he should pay over to McLennan County $799.25 of the sum retained in his hands as costs. From this judgment McLennan County appealed.

In the preparation of the transcript, about fifty pages of it is made up of the papers in the original suit, and the appellees in the Court of Civil Appeals filed a motion to have the cost of so much of the transcript charged against McLennan County, and McLennan County moved to have the cost of making the transcript reduced to 10 cents a hundred words instead of 20 cents.

The Court of Civil Appeals sustained both of these motions to reduce the transcript to one-half of the amount charged and.made an order charging the proportionate part of that amount against the appellant, upon the ground that the papers were unnecessarily included in the transcript. The Court of Civil Appeals held that the sheriff of McLennan County was entitled to commissions as upon one sale for all of the parcels sold to McLennan County and commissions upon each of the separate sales made to the other five persons.

McLennan County and the sheriff of Eastland County have both sued out writs of error to this court for a review of the judgment of the Court of Civil Appeals. The application of defendant in error presents opposing views of the questions submitted by plaintiff in .error, except that the defendant in error objects to the jurisdiction of the trial court to hear the motion because the judgment had been rendered at a previous term.

The force of the objection is not apparent, since the motion to retax the cost did not seek to affect the judgment but to correct errors of an officer of the court committed in enforcing its judgment. The motion could not have been filed before the error occurred. Farquhar v. Hendly, 24 Texas, 300. The Court of Civil Appeals held that the transcript contained matter rot necessary to a review of the questions presented and taxed the cost of copying those papers into the transcript against McLennan County.

The appellant was charged with the duty of having the transcript prepared and should have seen to it that it included no impertinent matter. Blum v. Davis, 56 Texas, 430. The plaintiff in error insists that the money collected belonged to the school fund of McLennan County and that it can not be applied to the payment of cost incurred in its collection.

McLennan County is trustee for the school fund, which, as beneficiary, was virtually a plaintiff in this suit, and we are of opinion that it was not exempted from the general rule that the cost of enforcing a claim has prior right to satisfaction out of money collected in the proceeding. City of San Antonio v. Barry, 92 Texas, 327. In the case cited, this court held a homestead liable for the cost of a proceeding to enforce a lien upon it.

Article 2460a of the Revised Statutes (Batts’ Digest) provides as follows: “Sheriffs shall receive for the following services the following fees: * * * Collecting money on an execution or an order of sale, when the same is made by a sale, for the first $100 or less, four per cent; for the second $100, three per cent; for all sums over $200 and not exceeding $1000, two per cent; for all sums over $1000 and not exceeding $5000, one per cent; for all sums over $5000, one-half of one per cent.” The statute was in force at the time of the transaction inquired of and must determine the rights of the parties.

Under one order of sale, one advertisement, and at the same time and place, the sheriff sold sixty-one parcels of land, fifty-six of-which were bid off by McLennan County, the plaintiff in the writ, and five different persons each bought a tract. In taxing his commissions for making the sale, the sheriff calculated the fees upon the amount bid for each separate parcel of the land as a separate amount, making the sum of $571.90, commission for collecting $19,003.

The District Court sustained this claim, but the Court of Civil Appeals reversed and reformed the judgment, holding that the sheriff' was entitled to charge only for six sales instead of the sixty-one, and reduced the amount of his recovery to $178.91¿. The plaintiff in error contends that the whole amount derived from all the sales should be considered as one sum upon which to estimate the commissions.

The language, “when the same is made by a sale,” can not be construed to mean that the “knocking down” of each separate piece of the property is to be considered “a sale.” “A sale” as used in this statute, imports just what it is commonly understood to mean; that is, there was “a sale” of the land, although it was divided into different parcels and cried off to separate bidders. This construction is made plainer by the provisions in the preceding

article 2460, that the sheriff shall receive $2 for executing a deed to each purchaser of real estate under execution or order of sale. It was not intended to make a distinction between the sale of all the property and the sale to particular individuals, but that there might be .more than one purchaser at “a sale” is recognized by giving the sheriff a fee for making a deed to each purchaser ; and if it had been intended that each one of these should be considered as a separate sale, then it would have been easy, in

article 2460a, to express that the sheriff should receive the per cent named upon the 'sum received from each purchaser, or some such term which would have indicated the same purpose with regard to the commissions as that expressed with reference to the making of the deed. It is true that there would be some additional labor in making sales of property in parcels, but this is provided for in the compensation allowed for making a deed to each purchaser.

We are of opinion that the District Court and Court of Civil Appeals erred in construing the statute and it is ordered that the judgments of both courts be reversed and judgment be -entered allowing the sheriff,Noble, to retain in his possession as commissions upon said sale the sum of $133.01-£ as well as all costs of the suit, and that he pay over to Mc-Lennan County all money collected in excess of said amounts.

It is further ordered that the plaintiff in error recover of the defendant, Noble, all costs in this proceeding in all of the courts, except the sum of $17.65, the cost of inserting in the transcript the immaterial matter. Reversed and rendered.