Hanrick v. Ake

COLLARD, Judge. —1. We think the court erred in allowing costs for ninety-one orders changing the venue in the ninety-one cases. By agreement the one order was to apply to each and all the cases; there was to be but one order; only one order was made, which applied by agreement to all the cases, and but on% order was actually entered on the minutes of the court. The statute fixes the amount of clerk’s fee for “each order, judgment, or decree” at 75 cents, and “when the judgment or decree exceeds two hundred words the additional fee for each one hundred words in excess of two hundred” is fixed at 15 cents. Rev. Stats., art. 2389, p. 350. 2. The court below finds that “prior to the order changing the venue five orders had been made and entered, each of which by its terms was made to apply to each of the ninety-one cases.” The clerk would be entitled to his fee for the five orders in each of the ninety-one cases if he actually entered them ninety-one times. If he only entered them once in one case he would, only be entitled to his fee for one order under the foregoing stattíte, because in such case there would in fact be but five orders made by the court and entered in the minutes. 3. There were ninety-one transcripts made and certified by the clerk pursuant to the order changing the venue, each signed by him in his official capacity and attested by the seal of his office, and we think he was entitled to his fee for each transcript as made. It is true plaintiff with the assistance of the clerk’s employe made one manuscript copy and had from it ninety-one copies printed, so that to complete the transcript in each case nothing was to be done but to write in the style and number of each case, and it is true that plaintiff paid for the printing. But suppose plaintiff had made out in writing all the transcripts, what would be the respective rights of the parties? Clearly the plaintiff would be entitled to compensation for the labor performed for the clerk with his knowledge and consent, and the clerk would be entitled to the fees of his office allowed by law for each transcript certified and attested. The fees of an office belong to the officer, and one doing the labor for him would not on that account be entitled to his fees. The extent of the officer’s liability when the labor is done by another would be reasonable compensation for the labor done. The right to the fee is a franchise which belongs to the officer, and does not go to the person who merely performs the work. The right of the person doing the work would be a subject of contract, or, in the absen'ce of a contract, a quantum meruit. We conclude that the clerk should be allowed his fee for only one order [146] changing the venue, for the five orders in each case if they were entered in each, but in one case only if only entered in one, and for the ninety-one transcripts, from which should be deducted reasonable compensation to appellant for labor done by him in that behalf, and accepted by the clerk, and necessary expense incurred. Because of the error of the court's judgment, as herein pointed out, we conclude it ought to be reversed and the cause remanded. Reversed and remanded. Adopted November 19, 1889.