Duncan v. Idaho County

245 P. 90, 42 Idaho 164, 1926 Ida. LEXIS 77

• Court: Idaho Supreme Court
• Decided: February 8, 1926
• Status: Published

Opinions

BUDGE, J.

Appellant foreclosed a mortgage upon real estate in the district court of the tenth judicial district, and upon the sale, there being no other purchasers, bid in the property for $23,698.01. The sheriff demanded $100 as his commission for making the sale. This the appellant refused to pay and tendered $50, which sum the sheriff declined to accept. Thereafter appellant under protest paid the sum of $100 and filed with the county commissioners his claim for a rebate of $50. The claim was rejected, whereupon this action was brought to recover that amount.

To the complaint a general demurrer was ’ interposed by the respondent and sustained, whereupon the appellant refused to plead further and thereafter judgment of dismissal was entered. This appeal is from the judgment.

Appellant specifies two assignments of error: that the court erred in sustaining the demurrer, and in entering the judgment of dismissal.

The solution rests upon the interpretation of that portion of C. S., sec. 3704, which follows:

“For commissions for receiving and paving over money on execution or other process, when land or personal property has been levied on and sold, on the first $1,000, 2 per cent; on all sums above that amount 1 per cent; but in no ease of sale of real estate shall his commission exceed the sum of $100.”

“When the amount of such sale is credited on the debt and no money is transferred then one-half of such commission.”

This portion of C. S., see. 3704, was first enacted in the Sess. Laws of 1891, p. 176, and is identical in language therewith, except that the word “and” is omitted, in the reenactment of the eleventh subdivision as found in the Session Laws, and a new sentence commencing with the word “when” and ending with the word “commission” is formed.

This same provision will also be found in the Sess. Laws of 1899, p. 116, in the Revised Codes, see. 2122, and in the Sess. Laws "of 1911, see. 197, p. 660. In the latter enactments there are no changes.

C. S., see. 9445, provides that “the provisions of these Compiled Laws, so far as they are substantially the same as existing statutes, must be construed as a continuation thereof and not as new enactments.”

Construing the foregoing section, in the case of Libby v. Pelham, 30 Ida. 614, 166 Pac. 575, this court said that changes made by a revision of a statute, as distinguished from legislative enactment, will not be regarded as altering the law, unless it is clear such was the intention, and if the statute as revised is ambiguous, reference may be had to prior statutes.

In construing C. S., see. 3704, since it is ambiguous or susceptible of two constructions, we are justified in referring to the prior statute in the Sess. Laws of 1891, p. 176, in order to assist us in ascertaining the intention of the legislature.

Appellant’s contention is that when no fuoney is paid, and the judgment creditor bids in the property, the commission shall be reduced to one-half. In the case at bar this would amount to fifty dollars.

The respondent’s contention is that the clause, “When the amount of such sale is credited on the debt and no money is transferred then one-half of such commission,” was intended to reduce the amount of commission to be computed on the percentage basis but was not intended to cut the maximum limit of one hundred dollars to fifty dollars.

The statute reducing the commission to one-half applies only to sales of real estate and had the property been bid in by some person other than the creditor for a like amount and the money deposited, the sheriff’s commission would have been $100. It would seem proper to hold, therefore, that since the sheriff’s commission could not exceed $100, had the money been paid and the amount not credited on the debt, that, since the amount was credited on the debt, the commission should be one-half of $100 or $50.

In reading that portion of the statute wherein it provides, “but in no case of sale of real estate shall his commission exceed the sum of $100,” the word “commission” is undoubtedly used with reference to the $100. The language is poorly chosen, but the intention of the legislature unquestionably was to provide that in no case of sale of real estate shall the sheriff receive a sum in excess of $100. In the latter portion of the same provision the word “commission” is used again, “when the amount of such sale is credited on the debt and no money is transferred then one-half of such commission.” There is no doubt that here the intention of the legislature was that when the amount of the sale is credited on the debt and no money transferred, the sheriff was to receive one-half of the $100.

From what has been said it follows that the trial court erred in sustaining the demurrer. The judgment is reversed with instructions to the trial court to enter judg meat in accordance with this opinion. Costs are awarded to appellant.

William A. Lee, C. J., concurs.