Reid v. Martin

LyoN, J. 1. The defendant can only be allowed for necessary copies of the pleadings and other papers served in the case. The engrossed copy is for filing, and he can only be allowed, in addition thereto, for one copy to serve and one to keep,— three in all. The court allowed for the engrossed copy and three other copies, — four in all. The judgment must be reduced by deducting therefrom the fees for one copy of all such papers. These amount to three dollars. It was said in argument that the taxation was in accordance, with the practice which prevails in the thirteenth circuit, but that a different practice prevails in some other circuits in the state. This is not a matter of discretion, and a practice which violates the statute cannot be upheld. 2. There is nothing in the record which shows any overcharge of sheriff’s fees on the subpoena. The writ was directed to and served upon five persons. A portion, probably four of them, were served in the village of Waukesha, and the other in the city of Milwaukee. It is claimed on behalf of the plaintiffs that the sheriff is not entitled to fees for travel outside his own county, and, if he is so entitled, the [145] service can. be proved only by affidavit, the same as if made by a private citizen. These propositions are not raised by this record. The sheriff’s official certificate is sufficient proof prima, facie of services rendered in his county, and there is nothing in the record to show any charge for travel outside of it. The witnesses served in Waukesha village may have resided in remote corners of Waukesha county, and the sheriff may have necessarily traveled to their residences to make the service, and, failing to find them there, afterwards found and served them in said village. The statute entitles him to one mileage for the greatest distance actually traveled by him to make such service. S. & B. Ann. Stats, sec. 731. If, therefore, we restrict the allowance to travel in Waukesha county, still there is nothing in the record to show any overcharge of fees. 3. The sheriff’s fees on the subpoena are $6.85. The clerk allowed them at $7.50. This was doubtless a mere clerical error, to which the attention of neither the clerk nor court was called. Had it been, the mistake would have been corrected at once. We will correct it. But for the reason just stated, it cannot be allowed to affect the question of costs of this appeal. By the Oourt.— The portion of the judgment for costs appealed from, to wit, $7.80 thereof, is reversed as to $3.65, and affirmed as to the residue, without costs to either party, except the defendant must pay the clerk’s fees in this court..