Gibson v. Sidney

• Decision Date: 16 December 1896
• Citation: 69 N.W. 314,50 Neb. 12
• Parties: GIBSON ET AL. v. SIDNEY.
• Court: Nebraska Supreme Court

50 Neb. 12

69 N.W. 314

GIBSON ET AL.

v.SIDNEY.

Supreme Court of Nebraska.

Dec. 16, 1896.

Syllabus by the Court.

1. “The term ‘action’ is a comprehensive one, and is applicable to almost any proceeding in a court of justice by which an individual pursues that remedy which the law affords him.” 1 Enc. Pl. & Prac. 110.

2. A cause is “a suit, litigation, or action; any question, civil or criminal, contested before a court of justice.” Black, Law Dict. p. 181.

3. The hearing of a motion to dissolve an attachment is a “trial” of the issues of law or fact, or both, in an action or cause, within the meaning of the term employed in our Code and the provisions of the fee bill fixing the fees of justices of the peace; and a charge of one dollar, taxed and collected with the costs of a case for a second day's attendance upon such hearing by a justice of the peace, was not the charging or taking of illegal fees.

Error to district court, Douglas county; Scott, Judge.

Action by William Sidney against George F. Gibson and others. Judgment for plaintiff, and defendants bring error. Reversed.

Foster & Boucher and C. P. Halligan, for plaintiffs in error.

Lee Helsley, for defendant in error.

HARRISON, J.

It appears herein that an action was commenced before a justice of the peace in Douglas county, in which a writ of attachment was procured to issue, and was by an officer levied on property of the defendant. Prior to the day assigned in the summons for hearing of the main cause, a motion supported by affidavits to discharge the attachment was filed, and a day was set for the hearing of said motion, on which the parties appeared by counsel, and, after a partial presentation of the matter, its further hearing was adjourned to the following day, when it was again taken up, the hearing completed, and the questions involved decided. In taxing the costs in the case, afterwards paid by defendant, the justice of the peace included one dollar as a fee for one day's attendance on the hearing of the motion to discharge the attachment. This, it is claimed, was an illegal charge, unauthorized by law, and the defendant instituted this suit against the justice of the peace and his bondsmen, and in it recovered a judgment in the sum of $50, the amount allowed by statute to be recovered by the person aggrieved from an officer who charges and takes illegal fees. From the judgment, error proceedings have been prosecuted to this court.

The only question, of those argued in the briefs, which we deem it necessary to consider, is whether the justice of the peace was entitled to charge the one dollar for one of the two days of his attendance on the hearing of the motion to discharge the attachment; and the determination of this hinges in part upon the answer to the query, was the hearing of the motion to dissolve a trial, within the meaning of the word “trial” as it appears in the fee bill embodied in our statutes, and also in section 279 of the Code of Civil Procedure? The section last mentioned reads as follows: “A trial is a judicial examination of the issues, whether of law or of fact, in an action.” In section 11 of chapter 28 of the Compiled Statutes, in which section the fees of justices of the peace are fixed, appears the following sentence: “Each day's attendance upon trial of a cause, after the first day, one dollar.” Section 235 of the Code, by which the right is conferred to file a motion to discharge an attachment, is as follows: “The defendant may, at any time before judgment, upon reasonable notice to the plaintiff, move to discharge an attachment as to the whole or a part of the property attached;” and the next section (236) reads: “If the motion be made upon affidavits on the part of the defendant, or papers and evidence in the case, but not otherwise, the plaintiff may oppose the same by affidavits or other evidence, in addition to that on which the order of attachment was made.” It is clear that the foregoing contemplates a hearing and settlement of issues of either or both law and fact, or a trial. If so, was it a trial in an “actio...