Martin v. Reissner , 54 Ind. 217 ( 1876 )

Worden, C. J.

This was a complaint by the appellant against the appellee, alleging, in substance, that the defendant, the sheriff of Marion county, by virtue of an execution issued to him on a judgment rendered in that court, in favor of one Bartholomew and against said Martin, had sold certain real estate of said Martin, realizing therefrom the sum of sixteen dollars and fifty cents more than sufficient to satisfy the judgment, interest and costs. That the plaintiff had demanded the same, but the sheriff had refused to pay the same over to him, on the ground that he had a right to retain the same as costs of advertising the sale of the property in a newspaper printed in the German language, at Indianapolis, etc.

A demurrer to the complaint was sustained at special term, and the plaintiff excepted. Judgment for the defendant. The decision at special term was affirmed at general term.

The proper error is assigned here.

We have no brief for the appellee, but we do not see any defect in the complaint, or any reason why the appellant was not entitled to recover the surplus, if the fees were not properly chargeable for advertising the sale in the German paper. The act of March 9th, 1875, (Acts 1875, Reg. Sess., p. 75.) requiring sheriff’s sales in certain cases to be advertised in a German newspaper, has been held, since this case was decided below, to be unconstitutional and void. Reissner v. Hurle, 50 Ind. 424. The act being void, the costs were improperly incurred, and the sheriff can not legally retain the surplus arising from the sale, for their payment.

We think the demurrer to the complaint should have been overruled.

The judgment below is reversed, with costs, and the cause remanded for further proceedings in accordance with this opinion.