Leese v. Courier Publ'g & Printing Co.

Decision Date20 December 1905
Citation106 N.W. 443,75 Neb. 391
CourtNebraska Supreme Court
PartiesLEESE, JUSTICE OF THE PEACE, v. COURIER PUBLISHING & PRINTING CO.
OPINION TEXT STARTS HERE
Syllabus by the Court.

The taking of fees by a justice of the peace, for services performed by him, and for which no fee is allowed, is actionable under the provisions of section 34, c. 28, Comp. St. 1903.

Commissioners' Opinion. Department No. 2. Error to District Court, Lancaster County; Frost, Judge.

Action by the Courier Publishing & Printing Company against Walter A. Leese, justice of the peace. Judgment for plaintiff, and defendant brings error. Affirmed.T. J. Doyle, for plaintiff in error.

J. A. Brown and C. O. Whedon, for defendant in error.

JACKSON, C.

This is an action to recover the penalty provided by section 34, c. 28 of the Complied Statutes of 1903, and is the second appearance of this case here; the first opinion appearing in 65 Neb. 581, 91 N. W. 357.

After the cause had been remanded plaintiff filed an amended petition, wherein the allegation material to the inquiry is: “That said defendant, Walter A. Leese, justice of the peace, on or about the 24th day of July, 1899, did demand of this plaintiff the sum of 50 cents for the approval of said appeal bond as follows: 10 cents for filing the same; 15 cents for copying the same upon his docket; and 25 cents for acknowledgment and certificate to the same. That the charging and taking of said sums of 15 cents for copying, and 25 cents for acknowledgment and certificate, were unauthorized and unlawful, and said defendant did demand, charge, and take from this plaintiff the said sums without authority and contrary to law. That said sums so demanded and received by the defendant from this plaintiff, as aforesaid, were more than by law the defendant was entitled to receive, and the taking thereof was the taking of greater fees than allowed by law, and was in violation of section 34, c. 28 of the Compiled Statutes of Nebraska of 1903, entitled ‘Fees.’ Whereby the defendant became indebted to the plaintiff in the sum of $50, no part of which has been paid.” The answer to the amended petition contains, first, a general denial; second, a plea of the statute of limitations; third, a want of legal capacity to sue; and, fourth, the constitutionality of the act under which the action is brought, together with the issue that the petition fails to state a cause of action. The reply is a denial of the allegations of new matter. A trial on the issues thus tendered terminated in a verdict being directed for the plaintiff for the sum of $50, and a judgment thereon. The defendant prosecutes error.

The petition in error and argument in support thereof presents the following questions for review: First, that the court erred in overruling an objection to the introduction of any evidence, for the reason that the petition failed to state a cause of action; second, that the action was barred by the statute of limitations; third, that the verdict and judgment are contrary to the evidence; fourth, the constitutionality of the act authorizing the maintenance of the action; fifth, want of legal capacity to sue; and, sixth, that the court erred in directing a verdict for plaintiff.

The amended petition, upon which the second trial was had, was filed more than four years after the cause of action accrued, and it is argued that the cause of action therein stated is entirely different from the one contained in the original petition and that the action is therefore barred by the statute. An examination of the first opinion, however, discloses that the identical items enumerated in the amended petition were involved in the original cause of action, and that it was because of the charging and taking of the fees said to be illegal that the first judgment was reversed. The original petition was offered in evidence at the second trial, and it appears that the only difference is that in the original petition it was charged that the defendant did demand of this plaintiff the sum of 50 cents for the approval of said appeal bond, and did demand and take the said sum of 50 cents therefor contrary to law, while in the amended petition, upon which the second trial was had, the itemized statement shows that only 25 cents of the 50 cents collected was charged for the approval of the bond. The charging of a fee, however, for the approval of the bond, is the essence of the complaint, and the illegal charge set out in the amended petition is identical with that in the original, except as to the amount, and the plea of the statute of limitations must therefore be determined adversely to the plaintiff in error.

The questions suggested by the fourth and fifth contentions have already been determined in this court adversely to the plaintiff in error. Iler v. Cronin, 34 Neb. 424, 51 N. W. 970;Graham v. Kibble, 9 Neb. 182, 2 N. W. 455.

The assignments of error involved in the objection to the introduction of evidence on the part of the plaintiff for the reason that the petition fails to state a cause of action, and that the verdict and judgment are contrary to the evidence, are based upon a construction of the statute which we are urged to adopt. The statute is as follows: “If any officer whatever, whose fees are hereinbefore expressed and limited, shall take greater fees than are so hereinbefore limited and expressed, for any service to be done by him in his office, or if any such officer shall charge or demand, and take any of the fees hereinbefore ascertained and limited, where the business for which such fees are chargeable, shall not be actually done and performed, such officer shall forfeit and pay to the party injured fifty dollars, to be recovered as debts of the same amount are recoverable by law.” This statute is penal in its nature and should be strictly construed, and the contention of the plaintiff in error is that the cause of action set out in the petition does not come within the letter of the statute; that the penalty provided by the statute is for the taking of a greater fee than that expressed and limited for services performed, or for charging or demanding and taking fees ascertained and limited for business which has not actually been done, whereas the cause of action set out in the petition is for the charging and taking of fees for services actually performed and for which no fee has been provided by statute. There is considerable force in this contention, and if it were an open question our conclusion might be different. However, it was so held in Insurance Co. v. McEvony, 52 Neb. 566, 72 N. W. 956; and in our former opinion it was expressly ruled that the charges were illegal and that the collection of the fee therefor was actionable under the provisions of the statute quoted, and it was because of that construction that the former judgment was reversed.

The only question remaining is, was the court justified in directing a verdict for the plaintiff? The evidence discloses without dispute that, at the time the item of 50 cents was paid to the plaintiff in error, counsel for defendant in error presented an appeal bond and applied for a transcript for the purpose of taking an appeal from a judgment rendered by the plaintiff in error, as a justice of the peace, against the defendant in error, and was informed that the advance charges on the appeal would be 50 cents. This sum was paid, and later, when the transcript was completed and...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT