Dibble v. Aycock, 58 N.C. 399, 5 Jones Eq. 399 (1860)

June 1860 · Supreme Court of North Carolina

58 N.C. 399, 5 Jones Eq. 399

DIBBLE AND BROTHERS against B. AYCOCK AND ANOTHER.

Where an injunction was granted to restrain the collection of a part of an execution of fi. fa., upon the condition that the plaintiffs would pay into the office, from which the fi. fa. issued, a certain amount of it, admitted in the pleadings to be due, it was Held that a sheriff, who had levied the fi. fa. for the whole sum on property sufficient to make it, was entitled to his commissions on the amount paid into the clerk’s office.

Cause removed from the Court of Equity of Lenoir county.

The several matters in controversy between the plaintiffs and defendants, afford no point necessary to be reported, but a matter of interest arises out of the petition of Wm. Fields, sheriff of Lenoir county, who represents to the Court, that when the fi. fa., in this case mentioned, issued from the county court of Lenoir, and came to his hands, as sheriff, he levied the same on property consisting of slaves, mules, horses, wagons, &c., sufficient to satisfy thé whole amount thereof, to wit, $10.689 69 with costs; that he took the same into his possession, and was holding the same in his hand to answer the exigency of the writ, when he was enjoined from proceeding under the execution, and he returned the same to the office without raising any money thereon; that the said injunction issued-on a fiat made by Judge Shephebd, which required that previously to the issuing thereof, the plaintiffs should pay into the office of the county court of Lenoir, where the judgment was, the sum of $7000, and that the same was done according to the condition. The sheriff, Fields, insists that he is entitled to commissions on the amount thus paid into the clerk’s office, ¡and asks the Court, if they should be of that opinion, to order ■the same to be taxed with the other, costs in the cause.

•Stevenson, for the plaintiff.

■J. H. Bryan and Strong, for the defendants.

MáNly, J.

* * * *

The petition of William Fields, sheriff of Lenoir, calling to the attention of the Court, the subject of his commissions for the partial execution of a fi. fa. against complainants, has been considered by the Court. It seems that he had made a levy under thefi.fa. when he was prevented from further action by the injunction, issuing from the master’s office of Lenoir. We are of opinion that the sheriff is entitled to his commissions upon the moneys paid into the office of the clerk of the county court of Lenoir, to wit, upon $7.000, and these commissions should be included in the bill with the other costs in the cause.

The law upon the subject of sheriffs fees, Revised Code, ch. 102, see. 21, gives 2^- per cent, commissions to that officer upon all moneys collected by him by virtue of any levy, and the like commissions for all moneys that may be paid to the sheriff by the defendant, while such precept is in the hands of the sheriff, and after levy. The sum upon which commissions is asked, was paid into the office of the court, for plaintiff, while the precept was in the sheriff’s hands, and after a levy. The case is strictly, therefore, within the provisions of the law. That the payment was made under a condition for an injunction does not affect the question at all.

The decree should be for a dissolution of the injunction, and for the defendant’s debt upon the injunction bond with costs, including commissions of sheriff Fields upon the sum of'$7000.

Per CueiaM, Decree accordingly.