Trimble v. Railway Co.

Hemingway, J. This case presents cross-appeals, on behalf of the clerk and defendant respectively, from a judgment taxing costs. The clerk contends that two items claimed by him were improperly disallowed ; and the defendant, that three items were improperly allowed The defendant argues the legality of certain claims which the court disallowed, but it is clear that it cannot complain of these orders ; and as the clerk does not, they are not before us. We, therefore, consider the court’s action with reference to five items of. the claim as to which the unsuccessful party is complaining. Fee of ministering The clerk charged and the court disallowed $1.40 forswearing fourteen jurors to answer questions as to their qualifications. If the oath was administered fourteen times, as seems to be conceded, the charge was proper and should have been allowed, whether fourteen persons or more took it. If it was administered less than fourteen times, less was chargeable, as the statute allows only ten cents for administering each oath, without reference to the number of persons who take it. The courts should see that litigation is not made unnecessarily burdensome, and should, when practicable, have all the jurors or witnesses, as the case may be, sworn at the same time. But if such persons are unnecessarily sworn separately, the clerk is entitled to ten cents ‘ ‘ for each oath administered ’ ’ — so says the statute. % Fee for q? to^acraimt of witness. The clerk charged and the court disallowed thirty cents for swearing three witnesses to the accounts for ° ^ their attendance. Witnesses can get their fees only by presenting and swearing to an account. Mansf. Dig. sec. 3270. The statute clearly indicates that the fier diem is to be net; and as an affidavit is required, we think it should be taxed as a cost of the case. Mansf. Dig. sec. 3272. If so, since the fee bill authorizes the clerk to charge for each oath administered ten cents, we think the claim should have been allowed. 3. Fees of conrti¿uánces.r The clerk claimed for two continuances thirty cents. which the court allowed. There was no order of continuance, and the causes went over with the lapse of the term. The statute fixes fees for services performed by the clerk, and was not intended to compensate him for accidents to which his service did not contribute. We think the claim improper. (5) For i n - dexing\ The clerk charged and the court allowed ‘ ‘ for indexing three times, thirty cents.” It is contended that the statute allows ten cents for indexing each case each term of court, and that no more can be allowed, though-more than one order is made and indexed. The statute provides “for indexing each case each time, ten cents.” The clerk is required to make a complete index of the record, and it should point to every record entry. We think that for every entry indexed he is entitled to ten cents. (c) For submissions. The clerk charged and the court allowed “ 15 cents for entering a submission ” of a motion for a new trial. The statute allows “for each submission, 15 cents ; ” we think a submission within the provision is a -submission of the cause upon an issue of law or fact, and not a submission of a question arising in the cause, and that the allowance was improper. For the errors indicated the judgment is reversed, and a judgment will be entered here to conform to this opinion.