Ford v. Kansas City, St. J. & C. B. R. Co.

• Citation: 29 Mo.App. 616
• Parties: BENJAMIN FORD, Respondent, v. THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY, Appellant.
• Decision Date: 19 March 1888
• Court: Court of Appeals of Kansas

29 Mo.App. 616

BENJAMIN FORD, Respondent, v. THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

March 19, 1888

APPEAL from Holt Circuit Court, HON. CYRUS A. ANTHONY, Judge.

Reversed and remanded.

The case and facts are stated in the opinion of the court.

STRONG & MOSMAN and HUSTON & PARRISH, for the appellant.

I. The clerk had no right to tax against the defendant the items of cost in suit, unless the statute specially authorized him to do so as a remuneration for the services claimed to have been performed by him, to-wit, " For 21 certificates to witnesses' affidavits, $5.25." The rule is, that the statute, with reference to cost, must be strictly construed and no cost can be recovered except specially authorized by statute. Shed v. Railroad, 67 Mo. 687-90.

II. There is no law requiring the clerk to certify to the affidavits of witnesses, nor do the items of cost charged in this case, and embraced in the schedule of fees in section 5603--" For oaths and certificates to affidavits 25c.," --in any manner refer to the oath required in section 5621, to be taken by witnesses when claiming their fees; nor does said section 5621, which fixes the duty of the clerk with reference to fees of witnesses, refer to the schedule embraced in section 5603. Rev. Stat., secs. 5603-21.

III. Section 5621 makes it the duty of the clerk, when fees are claimed by witnesses, to enter on his book, under the title of the cause in which the witness was summoned, etc., or, if before the grand jury, the names of the witnesses, the number of days in attendance, and the number of miles traveled etc., and shall swear the witness to the truth of the facts contained in said entry. Rev. Stat., sec. 5621. This section defines the duty of the clerk, independently of and without reference to section 5603, and is, therefore, the only provision of the statute to be looked to in order to determine either the duty of the clerk or the remuneration allowed him for the performance of the duty required therein. McGuire v. Savings Inst., 62 Mo. 344; Ex parte Snyder, 64 Mo. 58.

IV. Section 5621, Revised Statutes, does not require the witness to make an affidavit, nor does it require the clerk to certify to the oath of witnesses, nor that the oath shall be subscribed by the witness, but makes it the duty of the clerk to make certain entries in his book and swear the witness to the truth of the entries.

V. Section 2790 provides that each grand and petit juror on the regular panel shall receive $1.50 for every day actually served, and five cents for every mile necessarily traveled, etc., to be paid out of the county treasury. Section 2791 requires the clerk of the court to keep a book in which he shall enter, upon the application of each juror, the number of days such juror shall have served as such, and the number of miles traveled, and such entry shall be verified by the oath of such juror. Section 2792 provides that upon the demand of a juror the clerk shall give him a scrip, verified by his official signature, showing the amount to which such juror is entitled, etc. And section 2793 provides that the clerk shall receive $1.50 for his services at each term of court in complying with the provisions " of the two (secs. 2791-2) preceding sections." Rev. Stat., secs. 2790-93. Section 5621, fixing the amount to be received by the clerk for the services therein required to be rendered the same as for like services for grand jurors, means not only that he shall recover the same amount, but from the same source, and, therefore, would have no right to tax his fees for such services in any other manner. State ex rel. v. St. Louis, 20 Mo. 499.

VI. These statutes should be construed with reference to the meaning and intention of the legislature in enacting them. State ex rel. v. Diveling, 66 Mo. 395, 397; Connor v. Railroad, 59 Mo. 285-92; 4 Mo.App. 215. After witnesses are discharged, they may claim their attendance and mileage or not, just as they please. When discharged by the court, they are no longer subject to the order of the court, and cannot make costs chargeable to either party. If they desire their pay, they must claim it, and if they claim it, being a matter for their own benefit, they, and not the parties litigant, should pay for it.

D. S. ALKIRE, JOHN W. STOKES, and H. S. KELLEY, for the respondent.

I. In the schedule of fees allowed to clerks of the circuit court in civil cases is the following: " For oaths and certificates to affidavits, 25c." Rev. Stat. 1879, sec. 5603. It is claimed that this provision authorizes the charge in question. This service is required by the statute, and is essential to the right of the witness to have his fees allowed. The clerk shall, on the application of any witness to have his fees allowed, enter on his books, under the title of the cause, the name of the witness, the number of days he has attended, and the number of miles he has necessarily to travel, and shall swear the witness to the truth of the facts contained in said entry. Rev. Stat., sec. 5621.

II. This service is intended for the protection of the parties against illegal charges for fees, and is for their benefit alone. And although the witness may have been formally discharged as a witness, still, when he claims his fees, the entering of the claim by the clerk in the manner required is as much a service performed by him in the case as is the entering of the judgment after the decision of the court, or the issuing of an execution. This service is not required as a gratuity, and it certainly comes within the designation, " For oaths and certificates to affidavits." The witness takes an oath in the form of an affidavit, entered of record and subscribed by him, to which the clerk adds the usual jurat or certificate. This is necessary to preserve of record the evidence of the verification of the fees claimed by the witness. Upon consulting the dictionaries, it will be seen that a jurat is a certificate--to an oath or affidavit.

III. The appellant cites various sections of the statute upon the matter of fees for services rendered by the clerk, from which he inferentially argues that the clerk is entitled to nothing for the services rendered in this regard. But his parallels are too weak to have the force of argument against the right of the clerk to the fees charged. The case of Murphy and Spillane, 22 Mo.App. 476, cited by appellant, holds that the statute contemplates the payment of fees for services actually rendered. It is not denied but the services were rendered here, and there seems to be no other compensation for this service.

IV. Section 5621 requires that the clerk enter on his books the facts to be sworn to by the witness touching his claim to fees, and that the oath should be preserved in the form of an affidavit certified to by the clerk, and section 5603 provides the compensation therefor. So far as we have been able to learn, the clerks all use the same form and charge the same fee as was done in this case.

V. Appellant makes a labored effort to confound the law fixing clerks' fees in civil cases with that fixing fees in criminal cases, and with that providing compensation for taking claims of, and issuing scrip to, grand jurors and grand jury witnesses. Again, he takes the position that section 5621, Revised Statutes, fixes the clerk's compensation for the services in question, at the same he is allowed for taking claims of, and issuing scrip to, jurors and grand jury witnesses. Then he says,--" if they (witnesses) desire their pay, they must claim it, and if they claim it, being a matter for their own benefit, they, and not the parties litigant, should pay for it." It can hardly be possible that both of these positions are correct. The fact is, both are false. The first is false, because section 5621, Revised Statutes, in no manner whatever fixes the compensation of clerks in civil cases. And the second is false, because it is not for the benefit of the witness that he is brought into court to testify.

HALL J.

This was a proceeding by the defendant on motion to retax costs. The matter was submitted to the court on the following stipulation: " At this time come the parties hereto. And it is for the purpose of the premises stipulated and agreed that on the ____ day of _____, 188--, the said Ford obtained judgment against the defendant for the sum of $______, and that in taxing the costs in said cause, the clerk of the circuit...