Appeal from the Circuit Court of Cook County; the Hon. George
A. Higgins, Judge, presiding.
JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
This action challenges the authority of the sheriff of Cook County to retain fees charged for mileage "necessarily traveled" to perfect service of an attachment where the sheriff mails a letter to the opposing party rather than physically traveling in order to serve the writ. The individual and class action complaints challenging this practice were filed by the plaintiff, Glenview Credit Union, and were dismissed prior to trial for failure to state a cause of action. It is from that dismissal that the plaintiff appeals to this court.
The plaintiff in this case was also a plaintiff in an unrelated prior action. A judgment was entered in that case in favor of the plaintiff. Subsequently, the defendant in the prior action, not a party to the instant case, failed to appear for an examination after a citation to discover assets was issued against him. After a later order to show cause was issued, the defendant still did not appear and a civil body attachment was issued.
The attachment was delivered for service and execution to Sheriff Richard Elrod, one of the defendants in the instant case. The plaintiff made an advance payment to Elrod in the amount of $7.04 as the mileage fee for service of the attachment. Actual service of the writ was never effectuated because the defendant in the prior action appeared voluntarily after Elrod mailed him a letter advising him of the attachment date. The plaintiff subsequently made a written demand for a refund of the $7.04 mileage fee. Elrod refused to made a refund and the fee was paid over to the defendant Rosewell, Cook County treasurer. The plaintiff then filed its complaint for individual and class action relief, claiming that the statutory provision allowing the sheriff to retain fees collected for mileage "necessarily traveled" can only be employed when actual travel, as opposed to the mailing of a letter, is necessary. (Ill. Rev. Stat. 1981, ch. 53, par. 71.) The complaint was dismissed for failure to state a cause of action.
On appeal, the plaintiff raises three issues. Specifically, the plaintiff contends that it had adequate standing to bring this action in the trial court and consequently has the standing necessary to appeal the trial court's decision to this court; that its complaint properly stated a cause of action because the sheriff is not entitled to charge and retain mileage fees when no travel has occurred; and that it was necessary to seek equitable relief because no adequate remedy at law existed.
The first issue on appeal concerns whether the plaintiff has the standing necessary to bring this action. Citing no authority for their position, the defendants argue that because the plaintiff had a final, valid judgment against the defendant in the prior action for fees, the ultimate incidents of the mileage fee passed by operation of law to the defendant in the prior action. Therefore, the defendants urge, the plaintiff was divested of the standing necessary to challenge the mileage fee because the economic burden of paying the fee had transferred from the plaintiff to the defendant in the prior action once that judgment became final. We disagree.
• 1 Merely because the plaintiff has some right to collect fees from the defendant in the prior action does not necessarily mean that it can and will collect those fees. We believe that it was the plaintiff who in the first instance was required to pay the fee to the sheriff and who therefore shouldered the actual pecuniary burden of the charge. (See generally DeBruyn v. Elrod (1981), 84 Ill.2d 128, 418 N.E.2d 413.) Therefore, we find that the plaintiff has standing to pursue this action and that this court consequently may assess the merits of the plaintiff's complaint.
The second issue raised by the plaintiff on appeal reaches the substantive matters of the case. The plaintiff argues that the complaint was improperly dismissed for failure to state a cause of action because section 1 of "An Act to provide for the fees of the sheriff * * *" forbids the sheriff from charging and retaining mileage fees unless it is necessary for him to actually travel in order to effectuate service. (Ill. Rev. Stat. 1981, ch. 53, par. 71.) Specifically, the plaintiff contends that the mere mailing of a letter to a defendant does not allow a sheriff to charge and retain mileage fees under this statutory section, which reads:
"The officers herein named, in counties of the third class [counties containing a population exceeding 1,000,000 inhabitants], shall be entitled to receive the fees herein specified, for the services mentioned and such other fees as may be provided by law for such other services not herein designated.
Mileage for service of all process, 16¢ per mile each way necessarily traveled in making such service computed from the place of holding court." (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 53, par. 71.)
The plaintiff believes that the phrase "necessarily traveled" reflects the legislative intent to preclude the sheriff from charging and retaining fees for anything less than actual travel to effectuate service. While at first glance the plaintiff's argument appears convincing, we cannot accept the plaintiff's contentions in light of the precedent for this sort of action that has been established by previous Illinois case law.
In Fried v. Danaher (1970), 46 Ill.2d 475, 263 N.E.2d 820, appeal dismissed (1971), 402 U.S. 902, 28 L.Ed.2d 643, 91 S.Ct. 1382, the Illinois Supreme Court addressed a similar question where the plaintiff filed a class action complaint to recoup fees paid "for the services of a jury" where a previous case brought by the plaintiff had been disposed of before it was necessary to impanel a jury. (See Ill. Rev. Stat. 1969, ch. 53, par. 51.) The Fried plaintiff made a demand for a refund and the demand was refused by the clerk of the circuit court and treasurer of Cook County. The supreme court found that where the jury fee statute did not include a refund provision, it was proper to infer that the legislature intended the jury-demand fee to defray generally the cost of the jury system and not just the expense of the particular jury services provided to the party paying the fee. Further, the Fried court recognized that the practice of retaining the jury-demand fees was consistent, long continued and reasonable. Thus, the court found the practice to be proper even though the statute at issue merely authorized charging and retaining fees "for the services of a jury." See also Ali v. Danaher (1970), 47 Ill.2d 231, 265 N.E.2d 103.
• 2 We believe that the facts presented to us in the case at bar are so closely akin to those addressed in the Fried case that we must necessarily recognize the Fried reasoning to be controlling in the instant case. If the three general prerequisites set out in Fried are satisfied here, we think it would be proper for the sheriff to charge and retain mileage fees even if actual travel was unnecessary to effectuate service. Specifically, it must be established that the statute at issue does not include a refund provision, that the complained of practice is reasonable and that the retained costs are used to defray generally the costs of administrating the court system. As we shall ...