Marks & Gayle v. Wood , 133 Ala. 533 ( 1901 )

MoCLELLAN, C. J.

Section 1364 of the Code provides that clerks of courts and sheriffs must keep fee books, and that each such officer “must eater therein, in the form of a regular account opened for that purpose, every fee charged by him for every distinct service rendered by him.” Section 1365 provides that “no clerk, register or sheriff shall demand or receive a fee for any service by him performed not justified by a charge entered in his fee book.” And section 1883 is as follows: “At the foot, or on some part of the execution, the clerk must state, in intelligible words and figures, the several items composing the bill of costs; and without such copy of the bill of cists, the execution is illegal, and. shall not be levied.” There is no warrant in this language, and no reason outside of it for saying .that this section applies to original executions only and not to alias and pluries writs: It applies alike to all executions issued by the clerk of the circuit court. Looking alone to the letter of this section, it would seem to be fairly certain that it requires the charge for each act of service performed by the clerk and sheriff,, etc., to be separately stated on the execution, but any doubt that might be supposed to exist as to this is dissipated when its requirement that the statement on the execution shall be a copy of the bill of costs is considered along with the requirement of section 1364 supra that on the bill of costs shall be entered every fee charged by the officer for every distinct service rendered by him. Now it is clear, and not questioned by counsel in this case, that with reference to the issuance and return of an execution both the sheriff and the clerk perform several acts of distinct service for each of which a fee is allowed by law and required by section 1364 to be separately entered on their respective bills of costs in their fee books, and that there is no one act of service on the part of the clerk in that connection which can amount to the sum of $5.75, nor any one act of service on the part of the sheriff for which a fee of $2.05 .is allowed. The execution issued in this case on the 30th day of October, 1899, and levied on the property involved in the claim of Clemen Wood, was the second or third to issue; the other or others having been returned “no property.” In the statement of the costs attached to this execution are the following entries: “Clerk’s Fees * * * Fees on former fi. fa. $5.75. * * * Sheriff’s Fees * * Fees on former fi. fa. $2.05.” Each of these statements is in form an “omnium gatherum and accurately so. Each is in fact a lump statement of the aggregation of the fees allowed for several distinct acts of service rendered by the respective officers. Neither of them is a copy of the bill of costs in reference to said service, and neither of them is. a statement “of the several items composing the bill of costs.” By the very letter of section 1883, therefore, the execution of .October 30th, 1899, was illegal, and by that section its levy was and is unequivocally and mandatorily interdicted and forbidden. It was void upon every elementary principle obtaining in the premises. The levy was void. The court properly excluded this waste paper from the evidence. The burden being upon the plaintiffs on the issue made on Cleonen Wood’s claim to show a valid execution and a valid levy on property in the possession of defendant in execution, and they having failed to carry this burden, the circuit court proprly gave the affirmative charge for the claimant.

Affirmed.