Schultz v. Bower

• Decision Date: 20 November 1896
• Docket Number: 10,221--(162)
• Citation: 68 N.W. 1080,66 Minn. 281
• Parties: KATHERINE SCHULTZ v. JOHN S. BOWER
• Court: Minnesota Supreme Court

68 N.W. 1080

66 Minn. 281

KATHERINE SCHULTZ v. JOHN S. BOWER

Nos. 10,221--(162)

Supreme Court of Minnesota

November 20, 1896

Appeal by defendant from a judgment of the district court for Hennepin county, in favor of plaintiff, for $ 621.17 including $ 144.22 for costs and disbursements, entered after an appeal from the clerk's taxation of costs, and an order, Russell, J., affirming said taxation. Affirmed.

Judgment affirmed.

Little & Nunn, for appellant.

M. C Brady, for respondent.

OPINION

START C. J.

This is the third appeal in this case (see 57 Minn. 493, 59 N.W. 631, and 64 Minn. 123, 66 N.W. 139), and was taken by the defendant from a judgment in favor of the plaintiff upon the third verdict in her favor. The assignments of error relate solely to alleged errors in the taxation of the plaintiff's disbursements.

Upon each of the three trials of this action the plaintiff was required to, and did, pay a jury fee of three dollars, and the sum of nine dollars was allowed the plaintiff in the taxation of costs for the jury fees so paid. The defendant insists that this was error, for the reason that only one jury fee of three dollars can be taxed in any case, no matter how many jury trials there may have been. The statute provides that, "before the jury is sworn, the plaintiff shall pay the clerk three dollars as a jury fee, which shall be immediately paid by the clerk to the treasurer of the county." G. S. 1894, § 5368. The object of this statute is to indemnify the county in some measure for the money expended by it in securing and paying a jury for the benefit of litigants. Payment of this indemnity is secured by the statute, by requiring the fee to be paid before the jury is sworn. The mandate of the statute is not, as claimed by defendant, that a jury fee be paid in the action, but it is that, whenever a jury is called for the trial of the action, a jury fee shall be paid before the jury -- that is, the jury for that particular trial -- is sworn. There is no escape from the conclusion that the statute requires that where a jury cause is tried, verdict rendered, and a new trial granted, a further jury fee must be paid, when the case is called for another trial, before the jury can be sworn.

The only other alleged error in the taxation of the costs is the claim of the defendant that the plaintiff was allowed fees paid to witnesses for a greater number of days than they actually and...