
    John C. Fiedeldey v. Albert D. Diserens.
    1. A master commissioner, or other party entitled to have fees taxed as costs in an action, can not in his own name prosecute a proceeding in error to reverse an order of the court for retaxing the costs, or disallowing his claim for fees in the case.
    2. Where land is sold on execution or order of sale, and before confirmation of the sale by the court, the judgment or decree is satisfied by payment to the plaintiff, and the sale is thereupon set aside, the ofliQcr making the sale is not entitled to “ poundage” on the purchase money for which the land was so sold, the same not being 11 money actually made and paid,” within the meaning of the statute. (S. & S. 368.)
    Motion for leave to file a petition in error.
    Adam Burkett obtained a judgment in the Common Pleas of Hamilton county against John D. Eiedeldey for some $1,800 due on a mortgage, and an order for sale of the mortgaged premises for its satisfaction. The defendant in error was appointed special master commissioner in the case. An order of sale was duly issued to him, and he made return thereon that he ■ had made sale of the mort•gaged premises to Joseph Longworth for the sum of $6,000. The sale was in all respects regular and according to law; but before the same was confirmed the defendant, Eiedeldey, paid the amount of the judgment to the plaintiff, Burkett. The court thereupon set the sale aside, and ordered Eiedeldey to pay the costs. Among the items of cost taxed by the clerk was $70, charged by the master as “poundage” on the sum of $6,000, for which the property had been so sold. On motion of Eeideldey, the court ordered a retaxation of the costs by striking out this item of $70. The master, the defendant in error here, excepted to this order of the court, and filed his petition in error in the District Court, where the order of the Common Pleas was reversed. Eiedeldey now asks for leave to file a petition in error here to reverse the judgment of the District Court and affirm the order of the Common Pleas.
    
      Caldwell, Coppock § Caldwell, for the motion:
    The fact that a bid was made for the property and the commissioner struck off the property to the bidder and received the amount of the bid, does not entitle him to poundage. The sale must be completed by a confirmation. Vane* v. Bank of Columbus, 2 Ohio, 214.
    
      A. D. Diserens, contra:
    In the statute fixing the fees of sheriffs, S. & C. 365 (which fees are also those of master commissioners for similar services, Code, see. 613), the words “ poundage on all moneys actually made and paid to the sheriff,” admit of but one construction, to wit: poundage on money paid into the sheriff’s hands. Money paid to the sheriff' on sale of property ordered to be sold by him is “ money made,” providing all his proceedings have been “ regular and in conformity with the law,” and the sale is complete as far as he is concerned.
    In this case a sale of real estate was regularly made, and the purchase-money paid to the master, and he claims poundage on that amount, and no more.
    
      The case of Vanee v. Bank of Columbus, 2 Ohio, 214, cited by counsel for the motion, is not in point, because the facts-in that case and in this are entirely dissimilar.
    It is the intent of the law that an officer shall be compensated for the performance of all the duties required* of him. Poundage is allowed as a compensation, aud the only com. pensation for making a sale of property under order of the court. Vance v. Bank of Columbus, 2 Ohio, 214.
   Welch, C. J.

The question a7’gued by counsel is, whether the master was e7ititled to poundage on the $6,000, the purchase-money of the property sold. The master was entitled to the same fees allowed to sheriffs in like cases (Code, sec. 613); and by the statute regulating sheriffs’ fees (S. & S. 365), he is allowed “poundage on all moneys actually made and paid to him.” It seems to us that the Common Pleas was right in holding that this sum of $6,000 was not money “made and paid” within the meaning of the statute. The record in this case does not show whether the money actually came into the hands of the master, nor do we suppose it makes any difference whether it did or not. If it did come into his hands, he merely held it as security that the purchaser would fulfill his contract in case the sale should he confirmed by the court. It was not money made and paid within the meaning of the statute so long as the sale remained unconfirmed by the court.

But there is another ground on which it seems to us the judgment of the District Court must be held erroneous, and that is that the proper parties in error were not before that court. The petition in error should have been prosecuted by a party in the actio7i, and not by the master. To hold otherwise would be to hold that eve7'y officer, and every witness entitled to costs in a case, might prosecute a proceeding in error to reverse the court’s order disallowing his claim for costs.

Motion granted, and judgment reversed.

White, Res, Gilmore, and McIlvaine, J.J., concurred.  