Texas Brewing Co. v. State

WILLSON, C. J. (after stating the facts- as above). We are of the opinion that papers which do not form a part of the record proper of a case, and which the clerk is not directed by a statute to file, are not within the meaning of article 3855, Vernon’s Statutes, providing a fee to the clerk of 15 cents for “filing each paper” in a civil case. The letters in question, when admitted as evidence, did not become a part of the record proper of the cases (Noyes v. Parker, 64 Vt. 379, 24 Atl. 12; State v. Shappy, 79 Vt. 306, 65 Atl. 78; Bell v. Eddy, 2 Ind. T. 312, 51 S. W. 959; Smith v. Moseley, 234 Mo. 286, 137 S. W. 971), and we have been referred to and have found no statute requiring the clerk to file them. The letters might, when they had served the purpose for which they were admitted, have been withdrawn from the custody of the clerk by the owners thereof. If they thereafterwards remained in his custody, it was because he and the owners were willing that they should, and he then held them for the owners, and not in the discharge of a duty which the law imposed upon him. Therefore we think the court erred when’ he refused to strike’from the. bill of costs the item of $750 taxed therein for filing the letters. In view of the fact that the judgments were based upon agreements of the parties therefor, and therefore that entering same did not involve the assessment of damages, we are further of the opinion that the clerk was not entitled to tax as costs due him the fee of 50 cents for “assessing damages.” The judgment will be reversed, and the cause will be remanded, with instructions to the court below to retax the costs in accordance with the. ruling we have made.