STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

July 31, 1972

Arnold C. Jones
Deputy States Attorney, Pennington County
Rapid City, South Dakota 57701

OFFICIAL OPINION NO. 72-39

Sheriff's fees. When execution procedure is abandoned in pursuance to SDCL 15-18-32 and 15-18-33 before the sheriff receives any moneys, the commission provided by SDCL 7-12-18(29) is not a proper fee

Dear Mr. Jones:

You have requested an official opinion in regard to the following factual situation:

"X" obtained a judgment against "Z" in Meade County, South Dakota, which judgment was thereafter recorded with the clerk of courts in Pennington County, South Dakota. Thereafter, execution proceedings were commenced in Pennington Couty. As a part of such proceedings the sheriff of Pennington County has levied such writ of execution upon property in Pennington County.

After the levy of execution, the judgment creditor and judgment debtor entered into an agreement inpursuance to SDCL 15-18-32 to abandon such execution procedure.

The judgment creditor has offered to pay the sheriff those fees provided in SDCL 7-12-18 (11 and 12), namely the fee for the service of the writ of execution and return thereof, ($6.00), and the fee for the levy of the writ of possession, ($4.00). However, the sheriff is demanding that in addition he is entitled to the fee specified in SDCL 7-12-18(29).

Without setting forth SDCL 7-12-18(20) in this opinion, it appears that the earning of such commission as therein provided is predicated upon "all money received and disbursed" by the sheriff.

A review of the opinions of this office, commencing with the opinion reported in 1913-14 AGR 112 to date discloses that this office has always maintained a consistent interpretation of statutory fees allowed to any public officer, including sheriffs. This policy is that the public officer is not entitled to any fees which have not been actually earned, but when the imposition of the fees is justified, then the public officer is entitled to the proper statutory fee.

The process involved in executions is one which is confusing to the average person. However, the law itself, surrounding your execution process, seems unmistakable. Whenever an execution is sought, whether or not to proceed therewith through an execution sale is strictly within the control of the judgment creditor.

In McConnell v. Denham, 72 Iowa 494, 34 N.W. 298, approved in Lafferty v.Lafferty (Mich. 1905) 102 N.W. 626, the courts pointed out that even after the writ of execution is executed, by levy, the judgment creditor may voluntarily release this levy, and when such occurs the levy ceases to exist.

In Ehlers v. Gallagher, 147 Neb. 97, 22 N.W. 2d 396, Peck v. City National Bank, 51 Mich. 353, 16 N.W. 681,47 Am. Rep. 577, and Northern Alabama Ry. Co. v. Lowery, 3 Ala. App. 511, 57 So. 260, the courts have pointed out that it is within the power of the judgment creditor to control the enforcement of his judgment, and after execution has been issued, such judgment creditor has the authority to withhold the levy thereof, or he may restrain the sheriff from proceeding to collect by the execution process.

Such control on the part of the judgment creditor is provided in South Dakota by SDCL 15-18-32, and 15-18-33.

Ehlers v. Gallagher, supra, citing supporting precedent, held that if the sheriff is restrained from further proceeding with the execution process, he cannot claim fees for the disobedience of the instructions from the execution creditor by further proceeding with the execution process.

In the factual situation given, there appears to be no question that before the full route of the execution process was run, the judgment creditor, acting within his rights, abandoned the execution process. It appears that at the time of such abandonment the sheriff had no moneys in his hands, received as a result of a voluntary payment to him by or on behalf of the judgment creditor, or as a result of an execution sale.

In this situation, the requisite conditions of SDCL 7-12-18(29) have not been satisfied. The commission as therein provided has not been earned.

It is my opinion that under the stated facts the commissions provided by SDCL 7-12-18(29) have not been earned, and such is not a legitimate charge of the sheriff.

Respectfully submitted,

Gordon Mydland
Attorney General