Shackelford v. Phillips

• Decision Date: 29 January 1902
• Parties: SHACKELFORD, Clerk, v. PHILLIPS. [1]
• Court: Kentucky Court of Appeals

66 S.W. 419

112 Ky. 563

SHACKELFORD, Clerk, v. PHILLIPS. ^[1]

Court of Appeals of Kentucky.

January 29, 1902

Appeal from circuit court, Marion county.

"To be officially reported."

Action by Eusebia Q. Phillips against S. J. Shackelford, clerk, to enjoin the collection of a fee bill. Judgment for plaintiff and defendant appeals. Reversed.

Thompson & Spalding and Hazelrigg & Chenault, for appellant.

John McChord, for appellee.

DU RELLE, J.

In April, 1900, appellant, as clerk of the court of appeals issued a fee bill against appellee, Phillips, for fees claimed to be due appellant amounting to $114.05, on the appeal of Eusebia Q. Phillips against R. A. Burton, reported in 52 S.W. 1064. Before the fee bill was placed in the hands of the sheriff appellee paid the clerk all of the bill except the item of $105.30 charged for copy of transcript, conceded not to have been made by the clerk; the actual service being a loan of the original transcript to counsel for appellee who was appellant in that case. The sheriff of Marion county under the direction of the clerk, levied the fee bill upon Mrs. Phillips' horse and buggy, whereupon she and her husband brought suit in the Marion circuit court to enjoin Shackelford and the sheriff from proceeding to a sale under the levy. A recovery for damages was also sought. Upon final hearing, the trial court perpetuated the temporary injunction which had been granted.

The first question is as to the jurisdiction of the Marion circuit court, it being argued that a motion to dismiss for want of jurisdiction should have been sustained, and that the only remedy was by motion before this court to correct the fee bill. If this were an execution for costs, a suit to restrain a levy and sale under it would be prohibited by writ from this court, as held in Shackelford v Patterson, 62 S.W. 1040. But the fee bill in this case has none of the elements of a proceeding under a judgment. The officer issuing such a fee bill has by statute the right to the extraordinary remedy of distress to enforce its collection, but in granting this remedy the legislature has held the officer to extraordinary accuracy, and in section 1754 et seq. Ky. St., has provided that a single illegal charge shall render the whole bill void, has imposed a penalty for an illegal or double charge, has made such charge a high misdemeanor, and in section 1757 has provided for an action for damages for a distress made by virtue of a fee bill "if it contains any illegal or improper item, or an item for which the services have not been rendered," etc. In sections 1758 and 1759 a summary remedy is provided by application to the circuit judge, without pleadings, for the correction of illegal fee bills of any officer, and for an order to stay proceedings on such fee bill upon the presentation to the judge of a copy of the fee bill containing the illegal charge. We do not think that the grant of power to the circuit judge by such summary proceedings to stay proceedings under the distress until the matter is determined in court can be held to deprive the court of power upon a regular...