Smart v. Vehmeyer , 162 Okla. 300 ( 1933 )

This is an appeal from the district court of Tillman county, and involves an order of said court taxing certain items as costs. The record shows that plaintiffs, C.L. Smart and W.C. Johnson, had secured a judgment against the defendant J.E. Vehmeyer in the sum of $250; that they caused an execution to be issued against the defendant and the sheriff levied the same upon a certain growing wheat crop, and procured W.T. Autrey, who is herein referred to as movant, to harvest the wheat and haul it to market; that about the same time the defendant Vehmeyer was declared a bankrupt in the federal court for the Western District of Oklahoma, and the sheriff delivered the wheat, consisting of 780 bushels, to the trustee in bankruptcy.

The movant, Autrey, then filed a motion in the original action in which he alleged that he had not been paid the expense incurred in harvesting and hauling the wheat, and asked for an order taxing this expense, in the sum of $213.02, as costs.

The plaintiffs filed a response to the motion and the same came on for hearing. After evidence was presented, the court entered an order finding the facts in favor of movant, and ordered said sum taxed as costs in the case, and from said order plaintiffs have lodged this appeal.

Plaintiffs contend, first, that the district court was without jurisdiction to entertain the motion, and that movant should have filed a claim in the bankruptcy court against defendant Vehmeyer. However, there was no contract between movant and defendant. Here the movant was acting under the direction of the sheriff, levying an execution for the benefit of plaintiffs. By virtue of section 511, O. S. 1931, plaintiff is liable for all costs incurred by himself in case they cannot be collected from defendant.

It is not contended that the sheriff acted improperly in ordering the wheat harvested, or that the charges of Autrey are excessive. Section 7846, O. S. 1931, provides, in part:

"The sheriff and constables shall charge and collect the following fees and none other: * * * The necessary expense for care of property when held by virtue of any process, to be allowed by the court issuing same and charged in case, and in no event to be charged against the county. * * *"

We therefore conclude that the sheriff was charged with the duty of properly preserving the property for the benefit of plaintiffs, and that any legal or proper expense incurred to that end was a proper charge as costs in the case.

The plaintiffs further contend that the movant, Autrey, was without authority to file a motion, since he was not a party to the original action. Section 524, O. S. 1931, provides:

"The several clerks of the district court shall tax the costs in each case, and insert the same in their respective judgments, subject to retaxation by the court, on motion of any persons interested."

It might be observed that had this motion been filed by the sheriff, the defendant, or any other party, it would have been for the benefit of the movant, Autrey, and we fail to find any substantial prejudice to plaintiffs an allowing the movant to appear and prosecute the motion in his own name, especially in view of the fact that plaintiffs made no effort to have the motion stricken, but filed a response, and did not question movant's right to appear, except by objection to the introduction of evidence. Section 252, O. S. 1931.

There being no other assignments of error presented in the briefs, the cause is affirmed.

The record shows that a supersedeas bond was executed and filed in the district court, and the movant has requested an order of this court granting him judgment on the supersedeas bond.

It is, therefore, ordered and adjudged that the movant, W.T. Autrey, have and recover of and from O.T. Smart and W.C. Johnson, principals, and W.O. Smart and M.L. Lewis, sureties on said supersedeas bond, the sum of $213.02, with interest from the 10th day of December, 1928, at the rate of 6 per cent. per annumm, together with costs in the district court and in this court.

RILEY, C. J., CULLISON, V. C. J., and SWINDALL, ANDREWS, McNEILL, BUSBY, and WELCH, JJ., concur. BAYLESS, J., absent.