Potter v. Talkington

QTTARLES, J. A question arose between the parties to this proceeding as to the fees allowable by law to the appellant as ■clerk of the district court below, and the matter was submitted by stipulation, without action. The judgment of the lower court is in words and figures as follows: [318] “In the above-entitled action, the parties having submitted the controversy to the decision of the court upon a statement of facts agreed upon by and between them, .James W. Eeid appearing as counsel for the plaintiffs, and W. N. Scales as counsel for the defendant, and the court having considered the same, and being fully advised in the premises, it is ordered, adjudged and decreed, and the court doth hereby order and adjudge, that the plaintiffs pay to the defendant the fees allowed by law to clerks of court for a seal and certificate, to wit, the sum of fifty cents, and, in addition thereto, a reasonable fee for the time and labor required by the defendant in comparing said transcript with the original papers and certifying as to their accuracy. The said reasonable fee is hereby adjudged to be at the rate of five dollars per day for each day of seven hours — business hours — actually required in comparing said transcript with said original papers, and such pay of fifty cents and five dollars per day is in lieu of all other compensation for certifying said transcript. “Dated this 10th day of October, 1896.- “W. G. PIPED, “District Judge.” “Said judgment filed November 10, 1896, and entered same day in Judgment Book No. 1, page 278.” The aforesaid judgment purports to settle the law applicable to the pending controversy erroneously, we think, but does not. determine the facts involved, or fix absolutely the amount of fees due the appellant. No execution or final process could issue on said judgment; hence it is not a final judgment, and for that reason no appeal will lie therefrom. But as the parties are proceeding informally, and are seeking to ascertain what the lawful fees of the clerk for certifying a transcript on appeal which has been prepared by the appellant are, we express the opinion that in such case the clerk is entitled to the full fees allowed by law for copying and certifying such transcript. To-lessen the costs of appeals, this court has adopted a rule which permits the appellant to prepare the transcript on appeal, and present it to the attorney for the respondents, and the attorneys of the respective parties may then certify to such transcript. ;Under said rule, if the respondent’s attorney fails to certify [319] the transcript, the respondent is liable to tbe appellant for the cost of procuring a certification of such transcript, and it is incumbent on this court to see that the rule is enforced. Under the law as it existed when this controversy arose the clerk could not be required to authenticate any record except such as should be made by him, and then only on payment of the fee allowed for making and certifying the transcript, and this-was true, although the transcript should have been made by some one else. (Edmondson v. Mason, 16 Cal. 387; Chambers v. Appleton, 47 N. Y. Sup. Ct. 524 ; State v. Kelsey, 44 N. J. L. 1; Morrison v. Rodes, 7 T. B. Mon. 20.) As to the fees allowable to a clerk in such cases since the adoption of the act of March 12, 1897, we express no opinion. The appeal herein is dismissed, with costs to respondents. (June 9, 1897.) Sullivan, C. J., and Huston, J., concur.