Opinion
March 27, 1912.
Appeal from Coleman County Court; T. J. White, Judge.
Motion by the Coleman National Bank to compel W. L. Futch, as sheriff, and others, to pay over money collected under an order of sale. From a judgment for defendants, plaintiff appeals. Affirmed.
Snodgrass Dibrell, for appellant.
Weatherred McDaniel, for appellees.
This proceeding was a motion against a sheriff for alleged failure to pay over to appellant certain money collected by him under an order of sale, and was decided in favor of the sheriff.
It may be conceded, as contended by appellant, that, under the terms of the judgment upon which the order of sale was issued, appellant was entitled to the money referred to; but the sheriff in his answer claimed that he was entitled to it as compensation for taking care of certain live stock levied upon by him under a writ of sequestration which had been sued out by the original plaintiff, and he asked the court to make an order allowing him such compensation. That request was equivalent to a motion to retax the costs, which the court had the power to do. The court, in effect, granted that motion by approving the sheriff's expense account, and that action was correct and proper. R.S. arts. 1340, 2356, and 4871. After the court granted the sheriff's request, and retaxed the costs as stated, appellant was not entitled to have the money held by him paid over to it; and whether or not it would be entitled to any relief, as against the original plaintiff who sued out the distress warrant, we are not called upon to decide in this proceeding.
Judgment affirmed.