Trigg v. Larson

By the Court — McMillan, J. — This is an appeal by the. defendant from an order of the District Court dismissing an appeal from a judgment rendered in Justice’s Court. The grounds on which the appeal was dismissed were— 1. That the fee of one dollar for making the return was not paid to the justice. 2. The fees of defendant’s witnesses, as taxed, were not paid. It distinctly appears from the return and -amended returns of the justice that his fee for making the return was not paid, and that he did not in fact waive or intend to waive the payment of it. Sec. 150, chap. 59, Comp. Stat., provides that “no appeal shall be allowed by any justice of the peace until the appellant in addition to the requirements of section one hundred and twenty-three of this article [sec. 136, chap. 59, Comp. Stat.] shall pay all costs which may have accrued in the Justice’s Court, and one dollar for the return of the justice.” This section we think makes the payment of the costs and the fee for the return essential-conditions to the jurisdiction of the justice to allow an appeal. The facts presented in this case do not constitute payment [223] within the terms of the statute. The fee for the return not having been paid, the Court below properly dismissed the appeal; Ex parte La Farge, 6 Cow., 61; Ex parte Stephens, Id., 69; The People ex rel. Lincoln vs. Saratoga Common Pleas, 1 Wendell, 282. The second ground upon which the appeal was dismissed is not tenable. In a civil action the fees of witnesses for a-party against whom a judgment is rendered in Justice’s Court are not taxable as costs under the judgment. Such party, therefore, is entitled to appeal without paying his own witnesses. Ex parte Beadlestone, 7 Cow., 506; 11 Wis., 393. But as the appeal was properly dismissed on the first ground stated, the order must be affirmed.