Courier Printing & Publishing Company v. Leese

• Decision Date: 10 July 1902
• Docket Number: 11,894
• Citation: 91 N.W. 357,65 Neb. 581
• Parties: COURIER PRINTING & PUBLISHING COMPANY v. WALTER A. LEESE
• Court: Nebraska Supreme Court

91 N.W. 357

65 Neb. 581

COURIER PRINTING & PUBLISHING COMPANY v. WALTER A. LEESE

No. 11,894

Supreme Court of Nebraska

July 10, 1902

ERROR from the district court for Lancaster county. Tried below before FROST, J. Reversed.

REVERSED.

Charles O. Whedon and James A. Brown, for plaintiff in error.

Thomas J. Doyle, Doyle & Stone, F. J. Kelley and Walter A. Leese contra.

ALBERT C. DUFFIE and AMES, CC. concur.

OPINION

ALBERT, C.

The plaintiff brought this action against the defendant to recover the statutory penalty for charging and receiving illegal fees, which, it is alleged, the defendant charged and received of the plaintiff for official services, while acting as justice of the peace. There appears to be no conflict on any material point. The defendant was a justice of the peace of Lancaster county. An action was brought before him against the plaintiff in this case, who appeared specially and objected to the jurisdiction of the court over it. The objection was sustained, whereupon another summons issued for the plaintiff, as defendant, before the justice, which was duly served. The case was tried to the defendant as justice, who gave judgment against the plaintiff herein, from which it appealed to the district court. The defendant herein, as such justice, entered the proceedings had on the special appearance, and the steps anterior thereto, on his docket, as part of the proceedings in the cause in which he gave judgment; included such entries in the transcript on appeal; and charged therefor at the legal rate. He also charged ten cents for filing the appeal bond, fifteen cents for entering it on his docket and twenty-five cents for its approval and the memorandum of approval indorsed thereon. On this state of facts the court found for the defendant, and gave judgment accordingly. The plaintiff brings error.

As to the charge for that part of the transcript which pertains to the proceedings on the special appearance, the plaintiff contends that such entries were improperly included in the docket entries of the justice, and were not entries of proceedings had in the case in which the judgment appealed from was rendered, and that such charge was consequently illegal. Whether such entries were proper, we need not determine. They were made, and were a part of the docket entires in the case, when the transcript was ordered. If the record contained matters which the plaintiff did not deem necessary to be included in its transcript, it could have asked that they be omitted. It asked for a transcript of a record, the contents of which it must be presumed to have known. It got what it asked for, and, it seems to us, the defendant was entitled to his fees in making it. It is true the plaintiff objected to such entries after the transcript was made, but that was after the justice had earned his fee for making it, and came too late.

This brings us to the other items. The services for which a justice of the peace is entitled to compensation are specified in section 11, chapter 28, Compiled Statutes. He is entitled to no fees for services not herein enumerated. Phoenix Ins. Co. v. McEvony, 52 Neb. 566, 72 N.W 956. That section allows a fee of ten cents for "filing petition, bill of particulars, or...