Hocking Val. Coal Co. v. Rosser

• Citation: 41 N.E. 263,53 Ohio St. 12
• Parties: HOCKING VAL. COAL CO. v. ROSSER.
• Decision Date: 14 May 1895
• Court: United States State Supreme Court of Ohio

53 Ohio St. 12
41 N.E. 263

HOCKING VAL. COAL CO.
v.
ROSSER.

Supreme Court of Ohio.

Decided May 14, 1895

Error to circuit court, Athens county.

On August 22, 1893, Hiram Rosser commenced an action before a justice of the peace of Athens county to recover against the Hocking Valley Coal Company $6.82, upon a claim for work and labor, and also an attorney fee of $5, demanded by virtue of section 6563a, Rev. St., because the plaintiff in error failed to pay the sum claimed as wages within three days after payment thereof had been demanded in writing. The defendant in error recovered judgment before the justice of the peace for the amount of his claim for wages, and also an attorney fee of $5, as he had demanded. The plaintiff in error appealed the cause to the court of common pleas, where the defendant in error again prevailed, and was allowed by that court an additional attorney fee of $5. This judgment was affirmed by the circuit court, whereupon the plaintiff in error instituted proceedings in this court to reverse the same. Reversed.

Syllabus by the Court

Section 6563a, Rev. St., providing: ‘If the plaintiff in any action for wages recover the sum claimed by him in his bill of particulars, there shall be included in his costs such fee as the court may allow, but not in excess of five dollars, for his attorney. But no such attorney fee shall be taxed in the costs unless said wages have been demended in writing, and not paid within three days after such demand. If the defendant appeal from any such judgment, and the plaintiff on appeal recover a like sum exclusive of interest, from the rendition of the judgment before the justice, there shall be included in his costs, such additional fee not in excess of fifteen dollars, for his attorney, as the court may allow,’-is unconstitutional and void.

[Ohio St. 13]Arnold, Morton & Guerin and L. D. Vickers, for plaintiff in error.

Ohio St. 16]L. M. Jewett and Buckley & Pettit, for defendant in error.
[Ohio St. 18]BRADBURY, J.

The defendant in error on August 22, 1893, filed before R. R. Patterson, a justice of the peace in and for Athens county, Ohio, the following bill of particulars: ‘Hiram Rosser, Plaintiff, v. The Hocking Valley Coal Company, Defendant. The defendant is a corporation, duly organized under the laws of Ohio, and doing business in Nelsonville, Ohio. Defendant is indebted to plaintiff in the sum of $6.82 for work and labor done and performed in and about the coal mines of said defendant during the months of July and August, [Ohio St. 19]1893, and at the request of said defendant. Said sum is due and unpaid. Frequent requests have been made for payment of the same. On the 18th day of August, 1893, plaintiff served upon defendant a notice in writing, demanding payment of said sum within three days thereafter. Said defendant has neglected and refused to pay said sum within three days thereafter, in compliance with said demand. Therefore plaintiff prays judgment against said defendant for said sum of $6.82, and for his costs in this action, and for his attorney's fee of $5.00, and interest from August 10, 1893. Buckley & Pettit, Attorneys for Plaintiff.’ The defendant below, plaintiff in error in this court, was duly served with summons, but did not appear before the justice at the time of trial, nor make any defense against the claim of the plaintiff below. Whereupon the justice of the peace, upon the testimony presented by the plaintiff below, rendered...