McDonald v. Spence
| Citation | 179 Miss. 348,176 So. 607 |
| Decision Date | 25 October 1937 |
| Docket Number | 32632 |
| Court | United States State Supreme Court of Mississippi |
| Parties | MCDONALD et al. v. SPENCE et al |
(In Banc.)
1 COSTS.
Under statute requiring trial court clerk to make a statement on transcript of record sent to Supreme Court of amount of fee for transcript, clerk's certificate showing merely aggregate amount of fees for making transcript and for other services did not authorize taxation of costs therefor (Code 1930, section 59).
2 COSTS.
Although there is no statute requiring trial court reporter to file a certificate of his fee for transcribing notes of the evidence so that Supreme Court clerk in taxation thereof is governed by number of words appearing in reporter's transcript reporter should indicate the amount of his fee by certificate or otherwise.
3 COSTS.
Until statute requiring clerk of court to tax costs of case after cause has been determined and make out a bill thereof, specifying each section of law by virtue of which each item of costs is charged is complied with, no taxation of costs has been made, as respects right to retaxation thereof (Code 1930, section 685).
4. COSTS.
Compliance with statute providing that fees and costs shall not be payable until person chargeable has been presented with a bill containing the particulars of such fees signed by the clerk or officer is dependent upon a taxation of costs in accordance with section of statute requiring taxation of costs and preparation of a bill therof, specifying the section of law by virtue of which each fee is charged (Code 1930, sections 685, 686).
5. COSTS.
Taxation of costs by clerk of Supreme Court based upon trial court's certificate which stated aggregate amount of fees for making transcript and for other services rather than itemizing the account to show amount of fee for transcript would be set aside except in so far as it taxed fees due clerk of Supreme Court, but with permission granted to clerk of trial court to file a proper certificate and without prejudice to appellate to move for retaxation of costs (Code 1930, sections 59, 685, 686).
composed of HON. BEN STEVENS, Chancellor, Levi Sprinkle, Elwood Abbley and Louis Schruff, Election Commissioners of Pass Christian.
APPEAL from Special Court of Harrison County; composed of HON. BEN STEVENS, Chancellor, Levi Sprinkle, Elwood Abbley and Louis Schruff, Election Commissioners of Pass Christian.
Proceedings between John T. McDonald and others and J. H. Spence and others. From an adverse judgment, the former appeal. On appellant's motion to retax costs on appeal as taxed by the clerk of the Supreme Court. Motion dismissed without prejudice.
Motion dismissed.
Jo Drake Arrington and J. F. Galloway, both of Gulfport, and U. B. Parker, of Wiggins, for appellants.
J. L. Taylor, White & Morse, Gardner & Backstrom, and Geo. R. Smith, all of Gulfport, for appellees.
A motion has been made by the appellants to retax the costs on the appeal to this court, as taxed by the clerk thereof. The grounds of the motion are that the fees allowed to the clerk of the court below, and to the trial court reporter for the transcript of his notes of the evidence, are more than allowed by law therefor. The allowance of the fees of these officials was made by the clerk of this court on a certificate of the clerk of the court below, which reads as follows:
County, Mississippi.
"By E. G. Lindsey, Deputy Clerk."
In taxing the costs the clerk of this court awarded the $ 307.50 to the clerk of the court below.
One of the movants' contentions is that the certificate of the clerk below, on which the clerk of this court taxed the costs, is not in accord with the governing statutes, and therefore the costs have not been properly taxed. Section 59, Code 1930, is as follows: "The clerk shall make a statement on the transcript of the record sent to the Supreme Court of the amount of his fee for such transcript, and whether or not it has been paid to him; and, if he shall not do this, the clerk of the Supreme Court shall not be required to issue execution for such costs, nor to demand and receive the same."
The certificate of the clerk below as to costs does not comply with this statute, for it does not state what his fee for making the transcript is, but simply certifies that his...
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...fee according to the bill attached to the stenographer's transcript, $64.75. The court reporter's bill complies with the rule in McDonald v. Spence, infra, by stating that it is 'for transcribing 64,750 words * * * at the rate of $.10 per 100 words * * *'. But the chancery clerk's certifica......
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...of this certificate, the Clerk of this Court should have included in taxing the bill of costs this item of costs. In McDonald v. Spence, 179 Miss. 348, 176 So. 607, 608, the Court said: 'There seems to be no statute requiring the reporter of the trial court to file a certificate of his fee ......