Potter v. Talkington

• Decision Date: 18 May 1897
• Parties: POTTER v. TALKINGTON
• Court: Idaho Supreme Court

49 P. 14

5 Idaho 317

POTTER v. TALKINGTON

Supreme Court of Idaho

May 18, 1897

PRACTICE-WHEN A JUDGMENT IS FINAL.-A final judgment is one that fully settles the rights of the parties to the action. A judgment or order of court determining the law applicable to the issues of an action, but leaving questions of fact unsettled is not a final judgment or such judgment as is reviewable on appeal.

CLERK'S FEES-CERTIFYING TRANSCRIPT.-The clerk of a district court could not be required at the time the controversy herein arose to certify a transcript on appeal from this court unless the legal fees for copying and certifying such transcript provided by law should be tendered to him.

(Syllabus by the court.)

APPEAL from District Court, Idaho County.

Appeal dismissed, with costs.

James E. Babb and W. N. Scales, for Appellant.

The agreed facts show that defendant is clerk of the district court in and for Idaho county; that plaintiffs were preparing an appeal from the district court in Idaho county to this court; that instead of requesting the clerk to prepare for them their transcript on appeal, the plaintiffs, through their attorney, prepared it for the clerk; and presented it to the clerk for certification; he demanded twenty cents a folio for certifying the same; plaintiffs demanded that he should certify it on payment of the fees allowed for a certificate only, and a reasonable fee for the time and labor required in comparing. The court below erred in deciding that the clerk was not entitled to pay at the rate of twenty cents per folio. (Idaho Sess. Laws 1890-91, p. 174; Morrison v Rodes, 7 T. B. Mon. (Ky.) 20; Chambers v Appleton, 47 N. Y. S.Ct. (15 Jones & S.) 524; State v. Kelsey, 44 N. J. L. 1; Edmondson v. Mason, 16 Cal. 386.)

James W. Reid, for Respondents, cites no authorities on the point decided by the court.

QUARLES J., HUSTON, J. Sullivan, C. J., Huston, J., and Quarles, J., concurring.

OPINION

QUARLES, J.

A question arose between the parties to this proceeding as to the fees allowable by law to the appellant as clerk of the district court below, and the matter was submitted by stipulation, without action. The judgment of the lower court is in words and figures as follows:

"In the above-entitled action, the parties having submitted the controversy to the decision of the court upon a statement of facts agreed upon by and between them, James W. Reid appearing as counsel for the plaintiffs, and W. N. Scales as counsel for the defendant, and the court having considered the same, and being fully advised in the premises, it is ordered, adjudged and decreed, and the court doth hereby order and adjudge, that the plaintiffs pay to the defendant the fees allowed by law to clerks of court for a seal and certificate, to wit, the sum of fifty cents, and, in addition thereto, a reasonable fee for the time and labor required by the defendant in comparing said transcript with the original papers and certifying as to their accuracy. The said reasonable fee is hereby adjudged to be at the rate of five dollars per day for each day of seven hours--business hours--actually required in comparing said transcript with said original papers, and such pay of fifty cents and five dollars per day is in lieu of all other compensation for certifying said transcript.

"Dated this 10th day of October, 1896.

"W. G. PIPER,

"District Judge."

"Said judgment filed November 10, 1896, and entered same day in Judgment Book No. 1, page 278."

The aforesaid judgment purports to settle the law applicable to the pending controversy erroneously, we think, but does not determine the facts involved, or fix absolutely the amount of fees due the appellant. No execution or final process could issue on said judgment; hence it is not a final judgment, and for that reason no appeal will lie therefrom. But as the parties are proceeding informally, and are seeking to ascertain what the lawful fees of the clerk for certifying a transcript on appeal which has been prepared by the appellant are, we express the opinion that in such case the clerk is entitled to the full fees allowed by law for copying and certifying such transcript. To lessen the costs of appeals this court has adopted a rule which permits the appellant to prepare the transcript on appeal, and present it to the attorney for the respondents, and the attorneys of the respective parties may then certify to such transcript. Under said rule, if the respondent's attorney fails to certify the transcript, the respondent is liable to the appellant for the cost of procuring a certification of such transcript, and it is incumbent on this court to see that the rule is enforced. Under the law as it...