Conway v. McG. & M. R. R. ( 1876 )

Seevers, Ch. J.

The Code provides that such notices may be served by any one not a party to the action, but does not in terms provide any compensation. For similar services performed by a sheriff or other officer the Code fixes and regulates the compensation, mode of payment, and expressly provides that the same shall be taxed as a part of the costs in the action or proceeding. The Code also provides-that “the term sheriff may be extended to any person performing the duties of the sheriff, either'-' generally or in special cases.” Sec. 45, Sub-division 19. This provision does not authorize any person other than the sheriff to serve notices or levy executions and sell property, but whatever authority there is upon that subject is found in subsequent portions of the Code, therefore the section referred to has no bearing on the question under discussion.

All costs and fees are recovered and' taxed only under and by virtue of the statute, and as none are allowed, required or' permitted to.be taxed except when the service is performed-by some officer, no other person performing such service can have his fees taxed as a part of the costs. If a notice is served by any person other than an officer, he must look alone to the party employing him for his compensation, the amount' of which is in no wise regulated by statute, but is the subject of contract, and in the absence of any contract the party performing the service will be entitled to a reasonable compensation for the services performed.

Reversed.

Yol. xliii. — 3