Parrish v. Ferguson

CHIEF JUSTICE HINES dblivebed the .opinion of the couet;. Tliis is a motion to quash an execution in favor- of tlie clerk, issued from the clerk’s office of this court,, upon the ground that it embraces a charge for copying a record which was not in fact copied. It appears that counsel for the party who was successful in this court obtained permission from the clerk to> use the original record, instead of having a' copy, upon the agreement that his client should be charged with a copy, as if in fact made. The charge was so-made against the party obtaining the record, and on. final judgment his cost in this court, including a copy of the record, was taxed against the unsuccessful party. [20] Prior to 1856 it was the well settled practice in this ■court to allow.such charges, although the letter of the law authorized a charge for a copy only. On the 3d • of March, 3856, the Legislature passed an act forbidding a charge for copy of a record unless actually .made, and prescribing a penalty against the clerk for permitting a record to go out of his office, except in -cases provided by law. (1 Stanton’s Revised Statutes, volume 1, page 535.) The General Statutes, adopted December, 1873, omitted both provisions of the act of 1856, and provided, under the general head of clerks’ fees (chapter 41, pages 459-60), for the fees of the clerk of this court. .The omission to embrace the provisions of the act of 1856 in the General Statiutes, under the authority of Broadus v. Broadus, 10 Bush, 299, repealed the act of 1856, requiring a copy •of a record to be in fact made, and forbidding the -cle^k to allow a record to go out of his office except :in cases provided by law. That the intention to repeal this law existed in the adoption of the General Statvutes is strengthened by the provision therein, that “no clerk of an inferior court shall permit the records or papers of his office to be removed, or taken -out of the county in which his office is kept, except in cases of invasion or insurrection or in obedience to a summons.” (General Statutes, article 1, section 6, chapter 16.) This provision is not found in the Revised Statutes, and- its enactment in the General 'Statutes, together with the omission to re-enact or continue in force the act of 1856, makes it clear that the intention was not only to repeal the act of 1856, .but to recognize the former well-known custom or [21] practice in this court of charging a party using a:, record for a copy as if in fact made. Since the adoption of the General Statutes, the practice existing prior to the act of 1856, of allowing the clerk to charge the party using a record with, a copy as if actually made, has been resumed and. uniformly followed. It has, in fact, been repeatedly and expressedly recognized by this court in overruling motions to quash executions for such costs recovered by the successful against the unsuccessful, party. Under these rulings the litigants in this, court and the clerks have acted, until such rulings, have acquired the sanctity of judicial findings to-such an extent that we do not feel justified in overturning them. The unsuccessful party has no cause-of complaint. The party using the record is charged, as if a copy had been made for him ; the charge is: not made against the party complaining, and he is: in’no worse attitude than he would have been if tho copy had been actually made. (Q-eneral Statutes, section 32, chapter 26; chapter 41, page 460.) Motion overruled. Jüdg-e Holt not sitting.