Opinion
SC 473.
September 13, 1973. Rehearing Denied October 25, 1973.
Appeal from the Circuit Court of Jefferson County, Bessemer Division, G. F. Goodwyn, J.
Stone, Patton Kierce, Bessemer, for appellant.
If the taxation of costs be excessive, . . . by charging costs to an improper party, or taxing costs contrary to law, the party aggrieved may move the court for a retaxation, setting forth the particulars in which the clerk has erred . . . and from a judgment or order refusing or granting any motion made under this section an appeal lies to the Supreme Court as in other cases. Code of Alabama of 1940, Title 11, Section 77. At the common law, costs and fees were not allowed. Northern v. Hanners, 121 Ala. 587, 25 So. 817; Hood v. Stewart, 10 Ala. 600; City Council v. Foster, 54 Ala. 62. Statutes in derogation of the common law must be strictly construed. Cook v. Meyer, 73 Ala. 580; Gilbert v. Talladega Hdw. Co., 195 Ala. 474, 70 So. 660; Lamar v. Rivers, 235 Ala. 130, 178 So. 16; McDonnell v. Murnan Shipbuilding Corp., 210 Ala. 611, 98 So. 887. A statute which is an innovation on the common law will not be extended further than is required by the letter of the statute. Pappas v. City of Eufaula, 282 Ala. 242, 210 So.2d 802; Atlantic Coast Line R. Co. v. Kines, 276 Ala. 253, 160 So.2d 869. "Suit" does not mean "trial". Black's Law Dictionary, 4th Edition; 18 C.J.S. Corporations p. 785; 88 C.J.S. Trial p. 19. Commissions allowed to the sheriff under Title 11, Section 34, Code of Alabama of 1940 (1971 cumulative pocket part), should be computed on the amount which is paid by the defendant to the plaintiff. United States Rolling Stock Co. v. Clark, 95 Ala. 322, 10 So. 917; Morrow, Sheriff v. Rosenthil, 106 Ala. 198, 17 So. 608.
Frank Dominick, Birmingham, for appellee.
Statutes in derogation of common law, as a general rule, must be construed with reasonable strictness. Gilbert v. Talladega Hdw. Co., 195 Ala. 474, 70 So. 660; Cocciola, et al v. Wood-Dickerson Supply Co., 136 Ala. 532, 33 So. 856; Duncan v. Ashcraft, 121 Ala. 552, 25 So. 735; Gunter v. Belser, 154 Ala. 489, 45 So. 582. The word "suit" as used in Title 11, Section 34 of the Code of Alabama should be construed to mean trial. Underwood Typewriter Co. v. Marengo County Bank, 17 Ala. App. 47, 81 So. 543. The commission or fee paid to a sheriff for services rendered under Title 11, Section 34, of the Code of Alabama should be calculated on the amount sued for or in the alternative the amount that was really owing and not the amount or sum agreed upon in settlement. Morrow, Sheriff v. Rosenthil, 106 Ala. 198, 17 So. 608; United States Rolling Stock Co. v. Clark, 95 Ala. 322, 10 So. 917.
This is an appeal from an order of the Circuit Court of Jefferson County, Bessemer Division, overruling appellant's motion to retax the costs. Title 11, § 77, Code of Alabama, 1940, Recompiled 1958.
On January 16, 1973, Burgess filed suit against Hawley, claiming $159,805.62. Upon appropriate affidavit a writ of attachment was issued by and under which approximately 15,693 tons of coal, owned by Hawley, located at Port Osborne on the Warrior River, was attached. The process of attachment was performed by the sheriff.
The Burgess claim against Hawley was settled for the sum of $111,185.81, which sum was paid to Burgess by Hawley. As a part of the settlement the cause was to be dismissed by Burgess, costs taxed against Hawley, and the coal to be released from attachment.
On January 25, 1973, the court issued its order dismissing the cause and taxed the cost against Hawley. Simultaneously therewith, Burgess authorized the clerk and the sheriff to release the coal from attachment.
A portion of the costs amounting to $2,416.52 was claimed by the sheriff as commissions. This amount was assessed by the clerk and was based on the amount sued for in the complaint ($159,805.62). Hawley filed its motion to retax the costs, which was overruled by the court.
Title 11, § 34, Code of Alabama, 1940, Recompiled 1958, governs commissions to be paid the sheriff for attachment of personal property, which reads in part:
"When an attachment is by him levied on personal property, which is replevied, or the cause is settled without suit, he is entitled to one-half of the commissions upon the amount of the demand sued for, allowing him for making money on execution, to be paid by the party paying such demand, or replevying such property; and, if such demand is afterwards collected upon execution, or other final process he must receive only one-half of the commissions; . . ."
The question is whether the commissions (which must be paid to the county) are to be computed on the basis of the amount sued for here ($159,805.62) or the amount in settlement ($111,185.81).
This court has construed that the word "demand" as used in this statute does not mean the amount claimed or the damages laid in the attachment affidavit, or in the complaint. It means that which the plaintiff is entitled to have the defendant pay; the amount settled for. United States Rolling Stock Co. v. Clark Co., 95 Ala. 322, 10 So. 917 (1891); Morrow v. Rosenstihl Bros., 106 Ala. 198, 17 So. 608 (1894). Demand in this case is the amount accepted and paid in settlement. Therefore, the commissions will be based and computed on the amount of $111,185.81, the amount settled for without a trial of the case on its merits.
We construe the clause "the cause is settled without suit" to mean without a trial on the merits. To attach any other meaning to the language of the legislature would be unreasonable. When construing a statute this court must look to the context, spirit, and the whole, to reach the true intent of the legislature. State ex rel. Ellis v. Griggs, 227 Ala. 681, 151 So. 850 (1933); Age-Herald Publishing Co. v. Huddleston, 207 Ala. 40, 92 So. 193 (1921).
Reversed and remanded.
HEFLIN, C. J., and MERRILL, HARWOOD, and MADDOX, JJ., concur.