Wooden v. Commissioners of Allen County , 22 Kan. 532 ( 1879 )

The opinion of the court was delivered by

Horton, C. J.:

The fees charged and originally allowed to the sheriff, in the case of the board of county commissioners of Allen county against lot four in block three in the city of Iola, Allen county, and other property and the owners thereof, were excessive and unauthorized by law. The statute under which these-proceedings were had prescribes that upon a hearing by the court, it shall be the duty of the court to investigate and decide what taxes have been legally assessed and charged on the lands, lots and pieces of ground named in the petition, and to render judgment therefor, together with the interest and penalty thereon, as provided by law, to the date of such judgment, and charge the same as a lien on said land, lot, or piece of ground, and to order the sale of the same for the payment of such taxes, interest and penalty, and the cost of such proceedings and sale, which sale shall be made and conducted in all respects as sales upon execution. (Laws of 1877, ch. 39, §1.)

The only writ issued in cases of this character to a sheriff, and the writ on which the charges were made in this case, was an order of sale of the lots and pieces of ground on which certain taxes were declared a lien. The writ conformed to the judgment and order of the court, and under it the sheriff was only required to appraise and sell as upon execution the specific property therein mentioned. He had no levy to make, and there was no service to be made on any person; so the fees claimed for serving the parties and the several tracts of- land were unwarranted.- We also think that the statute allows to the sheriff the sum of fifty cents only for the appraisement, ■fifty cents for the advertising, and fifty cents for the offering for sale or the selling of the property named in the writ or levied upon under an execution,-and not fifty cents for each piece of property. The reference by the statute is to all the property to be disposed of under a single writ, and not to each separate piece of real estate or each article of personal property to be sold thereunder. (Laws of 1875, ch. 97, §1.)

The charges for mileage in serving the order of sale and making the appraisement were properly disallowed. As .above stated, no service had to be made on any party, and hence no fees could be charged for such acts.

The order and judgment of the district court in retaxing the fees and costs will be affirmed.

All the Justices concurring.