Request By:
Mr. William B. Redwine
Harlan County Sheriff
P.O. Box 978
Harlan, Kentucky 40831
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Two questions relating to the sheriff's office are raised in your letter. It reads in part:
"There are two (2) matters in which I need your opinion. The first one pertains to the sale of property by the sheriff after judgment has been obtained in circuit court. Recently I conducted a sale and received the sum of One Hundred Sixty Nine ($169.00) Dollars. I was later billed for approximately Two Hundred Fifty Seven Dollars for the advertising costs etc. The attorney for the plaintiff advised me I must pay all court costs (even though the fee wasn't enough to cover the expense). It is my understanding all expenses are paid prior to the distribution of the proceeds. My question is:
"Who is responsible for the payment of court costs, advertising etc. in a sheriff's sale? Should I pay and lose money?
"The second matter on which I need your opinion. By order of the Harlan County Fiscal Court, I am authorized to employ four (4) bonded deputies. Due to various reasons there are persons who would like to be bonded deputies. My question is:
"Am I bound by the order of fiscal court making four deputies the limit authorized by law?"
You have told us that the civil suit concerned the enforcement of a lien on real estate for failure to make payments. The circuit court awarded the plaintiff lienholder with judgment and ordered you, as sheriff of the county, to sell the property after due advertisement and appraisal. You were later billed for the advertising costs and the appraisal fees. You were paid a fee for your services, but still the plaintiff wants you to pick up the costs mentioned above.
The case of
Petty, Sheriff v. Coleman, 242 Ky. 187, 45 S.W.2d 1041 (1932), involved a woman charged with keeping a disorderly house in Jefferson County. She was found guilty and fined. Later she executed a replevin bond, covering the fine and costs owed. The bond not being satisfied, execution was placed in the hands of the sheriff and he levied on property of the surety. The question later arose as to whether or not the sheriff was obligated to pay the appraisers' fees or the expense of advertising. The court ruled as follows:
"In view of the prevailing statutes, there can be no doubt that appraisers' fees and the expense of advertising in judicial proceedings are 'costs,' sections 14a-3, 1745 and 1745a, Kentucky Statutes, and therefore not mere expenses incident to the sheriff's discharge of his official duties for which he may have credit in his settlement with the auditor under section 359a-1, Kentucky Statutes.
"Nor do we find in the statutes any provision imposing on appellant as sheriff, or in his individual capacity, the obligation to pay appraisers' fees or the expense of advertising sales like the one here involved. In Ellis v. Casey, 12 Ky. Law Rep. 508, a similar question arose before the superior court. After adverting to the fact that there was nothing in the statute making the sheriff liable for the cost of advertising, the court said: 'To hold him responsible would be as unreasonable as it would be to make him liable for the fees of a witness whom he had summoned. ' If it be argued that the newspaper may refuse the advertisement, unless payment be guaranteed by the sheriff, and thus place him in a position where he will be liable to a fine and damages on his bond for delay in advertising, it is sufficient to say that the refusal of every newspaper in the county to publish the advertisement will be a sufficient excuse for his failure to advertise.
"Doubtless it is true that there should be a statute providing that in cases like the one here presented the sheriff should pay the costs and take credit therefor in his settlement with the commonwealth but the duty of solving the difficulty rests with the Legislature and not with the courts."
In the earlier case of
Ellis v. Casey, 12 Ky. L.R. 508 (1890) (in which the appellee was represented by William Goebel, later elected Governor of Kentucky and assassinated), under a statute which provides for the advertising in a newspaper of the sale of property to be made by the sheriff, under execution, the court ruled that the sheriff was not liable to the publisher for the cost of the advertisement, in the absence of any agreement to that effect. The court wrote this:
"'There is nothing in the statute we are considering which in turn or by implication imposes the liability on the sheriff, and to hold him responsible would be unreasonable as it would be to make him liable for the fees of a witness whom he had summoned. But it is insisted that unless the sheriff is liable, the publisher is without remedy, as the law provides him no means of collecting his fees. Even if we agreed that the law does not make such provision, we can not see why for that reason the sheriff should be held liable. When the publisher makes the publication he necessarily assumes the risk of collecting his fees, and as his services are rendered under the statute for the benefit of the parties to the execution, not for the benefit of the sheriff, just as other services by the officers of the court are rendered for the benefit of the parties to the action, if the statute has failed to give him a remedy, he would have the right to resort to the ordinary action to recover of those for whom the work was done the reasonable value of his services. If there is a sale of the property by the sheriff it is his duty to include the cost of the advertisement as a part of the costs, and if he should neglect to do this and the publisher should not be able to collect his demand of the person primarily liable to him, the sheriff might be held responsible but no such facts are alleged in this case . . . .'"
KRS 426.560, relating to newspaper advertisement required in execution and judicial sales, reads:
"In addition to the notices now required by statute to be posted, all public sales of any kind of property sold under execution, judgment or decree, shall, unless otherwise agreed upon by the parties, be advertised by publication pursuant to KRS chapter 424. The advertisement shall state the time, place and terms of sale and describe the property to be sold. The newspaper advertisement shall not be necessary where the appraised value of the property to be sold is less than one hundred dollars ($100)."
KRS 426.520, relating to appraisal of property to be judically sold, reads:
"(1) Before any real property is to be sold under an order or judgment of a court, other than an execution, the commissioner or other officer selling the property shall have it appraised, under oath, by two (2) disinterested, intelligent housekeepers of the county, who may be sworn by the officer. If they disagree, the officer shall act as umpire. If only a part of a tract of land is sold, the part sold shall, after the sale, be revalued in like manner.
"(2) The appraisal made shall be in writing, signed by the persons making it, and returned by the commissioner or officer to the court which made the order or rendered the judgment for the sale of the property. The appraisal shall be filed among the papers of the cause in which the judgment was rendered or the order made, and entered on the records of the court."
In connection with the notice and appraisal statutes, see
McIntosh v. Clark, Thurmand & Richardson, 296 Ky. 358, 177 S.W.2d 155 (1944); and
Burchett v. Bank Josephine, Ky., 474 S.W.2d 66 (1971).
We can find no statute imposing court cost liability on you personally or as sheriff, including the appraisers' fees and advertising expense.
You are entitled to your fee for your services in effecting the judicial sale, unencumbered with any court costs. The expense of the advertising and the appraisers' fees should be a part of the costs of the suit, for which you are not responsible, unless you failed to include such costs as a part of the court costs and thus did not bring those items within the effective inclusion of costs as spelled out in the court judgment. In addition, you are not otherwise personally liable for the ad cost, in the absence of an agreement between you and the publisher.
Your second problem concerns deputy sheriffs. Your question:
"Am I bound by the order of fiscal court making four deputies the limit authorized by law?"
The only legal deputy sheriffs are those deputies appointed as regular, full-time deputies pursuant to KRS 70.030 and KRS 64.530.
Funk v. Milliken, Ky., 317 S.W.2d 499 (1958). Special deputies appointed under KRS 70.045 serve without pay; and their work relates strictly to assisting the sheriff in preparation for or during an emergency such as fire, flood, tornado, storm, etc. The use of special deputies must be considered very carefully, in view of the highly restrictive circumstances in which they can legally serve.
CONCLUSIONS
(1) A sheriff is not personally nor officially responsible for court costs, including the expense of advertising and appraisers' fees in connection with a judicial sale of property in which he participates at the direction of the court. Such items are a part of the costs, where you have included them in your reports to the court, subject to the directions of the court as to who has to pay them. See KRS 426.005 and 426.700. Costs are generally allowed to the prevailing party as a matter of course, unless the court directs otherwise. See CR 54.04 and KRS 453.040. See
Bell County v. Minton, 239 Ky. 840, 40 S.W.2d 379 (1931), holding that costs, unless properly taxed in a suit, do not become part of a judgment.
(2) A legal regular deputy sheriff is one appointed pursuant to KRS 70.030 and KRS 64.530.