
    [No. 3520.
    Decided December 26, 1900.]
    H. H. Eaton, Respondent, v. County of Spokane, Appellant.
    
    Appeal from Superior Court, Spokane County.—Hon. William E. Richardson, Judge.
    Affirmed.
    
      James Z. Moore, Prosecuting Attorney, Miles Poindexter and Horace Kimball, for appellant.
    
      John H. Roche, for respondent.
   Dunbar, C. J.

This was an action by the plaintiff (respondent) against the county of Spokane to recover certain commissions on sheriff’s sales in foreclosure suits, which were alleged to have been turned over to the county treasurer, it having been held by this court in Soderberg v. King County, 15 Wash. 194 (45 Pac. 785, 33 L. R. A. 670, 55 Am. St. Rep. 878), that a sheriff was not entitled to a commission upon a sale of mortgaged premises under a decree of foreclosure, where the property was bid in by the plaintiff for the amount of the mortgage debt, and that where the sheriff, upon making a foreclosure sale, had been paid by the bidder, who was the plaintiff in the action, a certain sum as commission, such sum constituted a surplus in the hands of the sheriff, which it was his duty to pay over to the judgment debtor. At the close of the plaintiff’s evidence, defendant moved for judgment of non-suit against the plaintiff, upon the ground that no proof had been offered that the sheriff had paid over any of the surplus funds aforesaid to the treasurer of Spokane county. The motion was denied, and the court found that such commissions had been paid to the treasurer aforesaid.

There is only one assignment of error, viz., that the evidence does not justify this finding of fact by the court. The evidence is very brief, but from an examination of it we are of the opinion that there was sufficient proof on this question to justify the finding of the court. The judgment is therefore affirmed.

Reavis, Fullerton and Anders, JJ., concur.  