August 9, 1979

Mr. Leonard E. Andera 
Brule County State's Attorney 
Chamberlain, South Dakota 57325

Official Opinion No. 79-28

Computation of sheriffs' commissions pursuant to SDCL 7‑12‑18(29) 

Dear Mr. Andera:

You have requested my official opinion on two questions involving the computation of sheriffs' commissions pursuant to SDCL 7-12-18(29).  That statute entitles a sheriff to charge 

His commission on all money received and disbursed by him on execution or order of sale, order of attachment, decree or on sale of real property or personal property, shall be, for each dollar not exceeding four hundred dollars, six cents; for every dollar above four hundred dollars, and not exceeding one thousand dollars, three cents; for every dollar above one thousand dollars, not to exceed fifteen thousand dollars, two cents; but in no case less than a sum of ten dollars such commissions to be included as a part of the cost of execution, order of sale, order of attachment, decree, or on sale of real or personal property, to be paid by redemptioner in all cases of redemption;

Based on the above you have asked the following questions:

QUESTIONS: 

1.  Is the sheriff entitled to his commission if the debtor voluntarily pays prior to execution, levy, and sale or is the sheriff entitled to his commission only in the event that a sale is necessary? 

2.  Is the commission based on the judgment set forth in the execution at the time of issue or the judgment plus the interest accruing daily?

IN RE QUESTION NO. 1:

A sheriff is entitled to a commission only if he has “received and disbursed” moneys as a result of a voluntary payment to him by or on behalf of the judgment debtor or as a result of an execution sale.  Official Opinion 72-39; 80 C.J.S. Sheriffs and Constables §  235(b)(4), 6,240; Official Opinion 77-51.

In Official Opinion 72-39 this office indicated that the earning of the commission is predicated upon the receipt and disbursement of money by the sheriff.  If the judgment creditor abandons the execution process under SDCL 15-18-32 the sheriff is not entitled to a commission.  Thus, payment to or settlement or compromise with the execution creditor after issuance of the execution but before service or levy defeats the sheriff's right to commissions.  80 C.J.S.  Sheriffs and Constables §  221(b).

IN RE QUESTION NO. 2:

Interest on a judgment may be included in the execution on the judgment.  30 Am.Jur.2d Executions §  69.  The sheriff, under SDCL 7-12-18(29) is entitled to a commission on “all money received and disbursed.”  If the sheriff is able to collect the judgment and the interest due, he is entitled to calculate his commission based on the total amount.

Respectfully submitted,

Mark V. Meierhenry
Attorney General

MVM:SCA:esp