Riley v. Louisville & N.R. Co.

• Decision Date: 07 June 1921
• Docket Number: 6 Div. 887.
• Parties: RILEY ET AL. v. LOUISVILLE & N. R. CO.
• Court: Alabama Court of Appeals

92 So. 23

18 Ala.App. 279

RILEY ET AL. v. LOUISVILLE & N. R. CO.

6 Div. 887.

Court of Appeals of Alabama

June 7, 1921

Rehearing Denied Oct. 4, 1921.

Appeal from Circuit Court, Jefferson County; Dan A. Greene, Judge.

Motion by Louisville & Nashville Railroad Company, to retax the cost in the case of Fred C. Riley and others, for the use of Jefferson County, against the Louisville & Nashville Railroad Company. From a judgment granting the motion, respondents appeal. Reversed and rendered.

W. K. Terry, of Birmingham, for appellants.

Tillman Bradley & Baldwin, of Birmingham, for appellee.

MERRITT J.

This cause is submitted under the following agreed statement of facts, viz.:

"In this cause, it is agreed that the bill of cost hereto attached as Exhibit A was and is the bill of costs in the above-entitled cause for the retaxing of which the motion in this cause was made and granted, and that the said bill of costs in every particular was a true and correct bill of costs in said cause, with the exception of the item of one-half commissions, $6.51, and that as to said item the amount there charged was and is true and correct if the clerk of said court had legal authority to include said item in the bill of costs; the defendant in the above-entitled cause based said motion to retax the costs upon the ground that there was and is no authority in law for the charging by the clerk of commissions for collecting said judgment; that said item was and is the true amount of commissions to which said clerk would be entitled to collect for collecting money on judgments wherein said judgment has not been paid within 30 days after its rendition, as provided in an act of the Legislature of Alabama approved September 30, 1919, entitled 'An act to amend section 3713 of the Code of Alabama of 1907' (General Acts of 1919, p. 884); that Jefferson county, being the beneficial owner of said item of costs, may prosecute an appeal to the Supreme Court of Alabama in the name of the plaintiff in the above-entitled cause for the use of Jefferson county; that the term of the present clerk of said court commenced on the 15th day of January 1917."

It will be noted that the only item of cost in controversy, is that of $6.51, being the amount of commission that it is claimed the clerk should collect, by virtue of an amendment to Code § 3713, approved September 30 1919 (Acts 1919, p. 885). The trial court refused to tax this as an item of cost, on motion of the appellant; hence this appeal. The idea of both appellant and appellee seems to be to get a decision of the question as to whether or not this item is a correct charge, it being provided for by an act going into effect after the term of the present clerk commenced, his term beginning on September 15, 1917. It appears that appellee's contention is that the allowance of this charge would in effect be an increase of the clerk's fees or compensation during his term of office and in violation of section 281 of the...