Opinion No. (1980)

REQUESTED BY: Michael J. Shaughnessy, Howard County Attorney. Where the sheriff pursuant to an order of sale issued by the district court conducts a sale upon a mortgage foreclosure and the sale results in the purchase of the property by the mortgagor for the value of the mortgage, is the sheriff entitled to collect a commission on the sale?

No.

Section 33-117, R.R.S. 1943 in part provides:

". . . commission on all money received and disbursed by him on execution or order of sale, . . . or on sale of real or personal property . . .; Provided, in all cases where no money is received or disbursed by him no percentage shall be allowed; . . . He shall pay all fees earned to the county treasurer, who shall credit same to the general fund of the county."

The Nebraska Supreme Court had occasion to consider this statute in Muinch v. Hall, 181 Neb. 571,149 N.W.2d 527 (1967). In that case the mortgagors after the order of sale and after the sheriff had conducted an auction and sold the property to joint bidders, redeemed the property from the sale. The court held in relying on an earlier case ofO'Shea v. Kavanaugh, 65 Neb. 639, 91 N.W.2d 578 (1902), that a redemption precludes a commission on behalf of the sheriff. While the opinion is somewhat cryptic it is safe to say that the decision of the Supreme Court in Muinch v.Hall is that the sheriff is not entitled to a commission unless he is authorized to receive or dispurse money. Where the mortgagor redeems the property or bids in the price of the mortgage balance or where for some other reason the sale is not consummated by a confirmation, the sheriff is not required to collect, disburse or account for any funds. As such he receives no money and no fee is due to him for services rendered.