Burns v. Moragne

McCLELLAN, C. J. The averment in the first count .of the complaint that it was the duty of Moragne as ex officio judge of the county court to collect (not that it was his duty to issue execution for) the sheriff’s ■fees in criminal cases tried in said court is in a sense -a pro forma averment, proper, even necessary, to be made, and sufficient as matter of pleading where the duty in fact exists, when made in the general way it is made in this complaint; but as such duty if it exists at all must be. imposed by or arise from express statutory law of which courts take, judicial cognizance, the complaint is to be treated and considered as if it set out the statutory provision relied on and affirmed- as the pleader’s -construction of the statute and conclusion of law that the duty counted upon is imposed by the law. So that when it is conceived by the defendant that the ■ statute does not impose the duty the issue of law is properly raised by demurrer, which puts the court to an interpretation or construction of the statute. Looking -then to the statutes, obtaining in the premises, we are brought to a concurrence with the city court in its conclusion that, the judge of the county court is under no official duty to collect costs in criminal cases which go, as fees for [498] his sendees in such cases to tlie sheriff. The statute upon which the question arises after prescribing the fees incident to prosecutions before the county court, proceeds thus: “The fees above specified shall be taxed against the defendant on conviction, or against the prosecutor under the provisions of section 4619, and, if not presently paid, may be collected by execution; but no fee shall be taxed for sendees not rendered. The fees taxed for services performed by the county court, or -by the judge of said court, belong to the county, and when collected shall be paid into the county treasury; and the fees taxed for all other -sendees shall be paid to the officers by whom the sendees are performed.” — Code, § 4578. As we read tlii-s section the only duties it imposes- upon the judge of the -county court -are to tax the fees earned by the sheriff along with the other costs and to issue execution for their collection, if they are not presently paid. He would be the proper recipient of -costs presently paid without execution probably, but he has no -duty or power in respect of enforcing present payment and when such payment i-s not voluntarily made,. the execution he is authorized to is-sue goes of course into the hands of the sheriff and the duty of collection is solely upon that -officer and in no sense upon the judge. The third -count bases a right of recovery against the judge of the county court and the sureties, on his official bond upon his alleged failure ito send up to the -circuit or city court a statement of the costs due the sheriff in -cases brought before the count.)- court where the defendant is bound over to answer an indictment, or demands a jury trial, or appeals from a judgment of -conviction. In the first class of cases. — -where the defendant is bound over to answer an indictment-the judge of the county court in his capacity as a committing magistrate is only required “to return to -the solicitor or the foreman of the grand jury, * * * the affidavit and warrant of arrest, with a transcript of the docket and a list of the State’s witnesses and all undertakings of bail by parties or Avitnesses in the case.” — -Code, § 5247, The docket of a court, unless [499] expressly required by statute, does not set forth the costs in cases upon it. There is no statute requiring the docket of the county court to embrace a statement of costs. The other papers required by this section to be returned by the county judge obviously have nothing to do with the bill of costs incurred before him. And hence it is clear, we think, that in these cases he is under no duty to return a statement of the costs to the court to which the defendant is bound over. Where the defendant demands a trial by jury — the second class mentioned above — the judge of the county court is required only (to return the defendant’s appearance bond to the court before which he is required by it to appear; and here is no semblance of an imposition of duty upon the judge to also return a statement of costs incurred by his court. In cases of appeal from a judgment of conviction in the county court to the circuit or city court, the requisition of the statute is more comprehensive. It provides that the judge of the county court “shall make out a copy of all the proceedings had in his court, except the subpoenas for witnesses and the appeal bond, certify the same as correct, and hand the transcript together with the appeal bond, to the clerk of the circuit or city count.” — Code, § 4623. The judgment of conviction is, of course, a proceeding in the court, and incident to it and a part of it is judgment for the. costs, (Code, § 4617) ; and the taxation of costs necessary to the effectuation of the judgment is necessarily a part of the proceedings of the. court, and as such should be copied and certified to the appellate court under section 4623. This construction of the section is eminently reasonable upon the meaning of the words “copy of all proceedings” in and of ■ themselves, and it is reenforced by the exceptions made in the section which demonstrate that in the minds of the lawmakers the writs of subpoena and the appeal bond were parts of the proceedings as that term was employed by them and would under the general provision have to be transcribed and delivered to the appellate clerk. Our conclusion, therefore, is that the third count would make [500] a case against the defendant for his failure to copy and send up a statement of the costs in appeal cases, if such cases only were involved in it. But as the claim -of plaintiff was bused on the action of the county judge in respect of cases on preliminary trial and where demand for jury is made as to which no failure of duty is shown, along with his failure of duty in appeal cases, the whole count is bad, and the demurrer was properly sustained to it. Affirmed.