Harris v. Rolette County
| Decision Date | 24 June 1907 |
| Citation | 112 N.W. 971,16 N.D. 204 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Rolette county; John F. Cowan, J.
Action by Fred E. Harris against Rolette county. From a judgment for defendant plaintiff appeals.
Affirmed.
Fred E Harris and H. E. Plymat, for appellant.
Preliminary examination is a "trial." Ex parte Bedford, 106 Mo 625; State v. McOblenis, 24 Mo. 402; Low v People, 12 Wend, 344; People v. Napthaly, 39 P 29; 16 Enc. Pl. & Pr. 846; People v. Elliott, 22 P. 207.
The county is liable on implied contract. Webb v. Baird, 6 Ind. 13; Blythe v. State, 4 Ind. 325; Dane County v. Smith, 13 Wis. 585; Cheek v. Schwartz, 70 Ind. 339; Buchman v. State, 69 Ind. 1.
Wm. Bateson, for respondent.
Preliminary examination is not a criminal action. State v. Rozum, 8 N.D. 548, 80 N.W. 477.
Appellant cannot recover on an implied contract. Wayne County v. Waller, 90 Pa. 99, 35 Am. Rep. 636; Rowe v. Yuba County 17 Cal. 61; Vise v. Hamilton County, 19 Ill. 78; In re Eaton, 7 N.D. 269, 74 N.W. 870.
This appeal presents the question of the right of an attorney to demand compensation from the county when he has been assigned by a justice's court to appear for an indigent defendant on a preliminary examination upon a charge of unlawfully selling mortgaged property. The plaintiff was assigned to defend, and appeared for the defendant, and the justice of the peace fixed his compensation at the sum of $ 25. The county commissioners refused to pay or allow said sum as a claim against the county. Thereupon plaintiff brought an action against the county for said sum in justice's court, and recovered judgment for said sum with costs. The district court reversed the judgment of the justice of the peace on appeal thereto, and dismissed plaintiff's action.
The sole question before us is whether the county is liable for a reasonable attorney's fee under such facts. Section 13 of the Constitution gives to one accused of crime the right "to appear and defend in person and with counsel." Section 9758, Rev. Codes 1905, relating to preliminary examinations, provides that "the magistrate must immediately inform him of the charge against him and of his right to the aid of counsel in every stage of the proceedings." Section 9759 is as follows: Section 9760 is as follows: "The magistrate before whom the accused is brought, must, unless a change of the place of trial is had under the provisions of the next section, immediately after the appearance of counsel, or, if none appears and the accused requires the aid of counsel, after waiting a reasonable time therefor, proceed to examine the case." Section 8475, Rev. Codes 1905, is as follows: "When the defendant is brought before the justice he must be allowed a reasonable time and opportunity to procure counsel." Section 10216 is as follows: "In all criminal actions when it is satisfactorily shown to the court that the defendant has no means and is unable to employ counsel, the court shall appoint and assign counsel for his defense and allow and direct to be paid by the county in which such trial is had, a reasonable and just compensation to the attorney so assigned for such services as he may render; provided, however, that such attorney shall not be paid a sum to exceed twenty-five dollars in any one case."
It is claimed by the appellant that the section last quoted confers upon a justice's court the power to assign counsel for the defense of indigent persons on a preliminary examination. The argument advanced is that a preliminary examination is a trial within the meaning of that section. We cannot agree to this conclusion. See Enc. Pl. & Pr. p. 821, and cases cited. Upon a trial, whether civil or criminal, certain issues are determined finally. In a trial of a criminal action, the guilt of the accused is finally determined subject to appeal or other proceedings. On a preliminary examination there is no final determination of any issue on the question of guilt. The accused is held to answer on showing of probable cause of guilt, or discharged. If held to answer, the trial may follow in a court of record, but the examination is no part thereof. The mere reading of section 10216, supra, makes it too clear for discussion that it can have no application to preliminary examinations. It plainly applies to trials only. It may be admitted that a preliminary examination is a proceeding in a criminal action, and still plaintiff's contention that this section applies to preliminary examinations would not follow. If the county is liable for attorney's fees on preliminary examinations, the liability must rest upon some other provision of law. The constitutional provision referred to has no application to the question involved. That provision guarantees to all accused persons the right to have counsel appear for them. As to the compensation of such counsel, that provision determines nothing. On reading the foregoing provisions of the statute, it is clear that they confer on committing magistrates no power to appoint counsel for indigent persons. Committing magistrates are of limited powers, and must look to statutory provisions to authorize their acts. They have no inherent power to bind the county for the compensation of attorneys appointed by them...
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