Superior Oil Co. v. Foote, 38562

• Citation: 65 So.2d 453,216 Miss. 728
• Decision Date: 08 June 1953
• Docket Number: No. 38562,38562
• Parties: SUPERIOR OIL CO. v. FOOTE et al.
• Court: United States State Supreme Court of Mississippi

Page 453

65 So.2d 453

216 Miss. 728

SUPERIOR OIL CO. v. FOOTE et al.

No. 38562.

Supreme Court of Mississippi.

June 8, 1953.

Wells, Thomas & Wells, Jackson, Willard B. Wagner, Murray Christian, Houston, Tex., for appellant.

Buchanan & Montgomery, Laurel, J. E. Skinner, Jackson, for appellees.

ETHRIDGE, Justice.

This case was decided by the Court on February 23, 1953, and a suggestion of error was overruled on April 27, 1953. Superior Oil Company v. Foote, Miss., 63 So.2d 137. Suggestion of error overruled, Miss., 64 So.2d 355. On May 13th Clifford Bass, Chancery Clerk of Jefferson Davis County, where the case was tried, filed a motion to retax the costs in this case. The chancery clerk's original certificate of transcript fees in the record had computed the costs of the transcript at 15cents per 100 words, under the old statutes, Code of 1942, Secs. 3932(t), 3934(r), and the last paragraph thereof. The motion averred that such costs should have been computed under the 1950 statute on the basis of 25cents per 100 words. Hence movant asked the Court to retax the costs on the latter basis. Appellees have filed a brief contesting several issues with movant.

Miss.Laws 1950, Chapter 291, being Code of 1942, Sec. 3932 (1952 Supp.), amended the former statute on fees of clerks of the chancery court, but made no express provision for the clerk's transcript fees. The 1950 amendment of section 3932 omitted subsection (t), applicable to that item, which was in the act prior to 1950. However, Miss.Laws 1950, Chapter 239, amended Code of 1942, Sec. 3934, which deals primarily with fees of clerks of the circuit court. The last paragraph of Chapter 239 provides:

'For making final records required by law, furnishing transcripts of records, or copies of papers on file, recording instruments required by law to be recorded and copied, or of which any person is entitled to demand and receive copies, twenty-five (25cents) cents for every hundred words, and four figures shall be considered one word; and the same fees shall be allowed to all officers for making and certifying copies of records or papers which they are authorized to copy and certify.' (Emphasis supplied.)

We think that the purpose and effect of the quoted provision is to establish a fee for 'all officers', including chancery clerks, of 25cents per 100 words for 'furnishing transcripts of records'. The phrase 'all officers' expresses a legislative intent to make that provision applicable to all court clerks who perform the stated functions. This interpretation is manifest not only because of the particular terms of the statute but also because a contrary interpretation would create a serious gap in the fee system for court clerks.

Appellee's brief on the motion points out that a large part of the record in this case consists of photostat copies of exhibits, such as orders and rules of the State Oil & Gas Board, and various other documents. Appellee suggests that there is no statutory fixing of any particular fee to be paid to the chancery clerk for making photostat copies of the exhibits in the transcript. Miss.Laws 1944, Chapter 196, Secs. 1 and 2, amending Code of 1942, Sec. 878, provides that it shall be the duty of the clerk of the chancery court to record certain instruments by either entering them in handwriting or typewriting or by filling out printed forms, 'or by recording by photostat machine or other equally permanent photographic process * * *'. In 1952 the Legislature authorized boards of supervisors to purchase photostating machines and equipment, which shall be under the control and supervision of the chancery clerk. Miss.Laws 1952, Chapter 225, Code of 1942, Sec. 2900.7. Considering these statutes together with the last paragraph of Chapter 239, Laws of 1950, which provides a clerk's fee of 25cents for every 100 words for 'furnishing transcripts of records', we think that it was the legislative purpose to make this fee system applicable to transcript pages reproduced either by typewriting or photostating process.

However, the chancery clerk failed to comply with the statutes and decisions of this Court in preparing his certified statement of transcript fees. The first item therein is the court reporter's 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 certificate concerning his fees states: 'Transcript _____ words at 15cents per 100, (Code 1930, Sec. 1788-r) $687.85'. An amended statement was later filed apparently computing transcript fees at 25cents per 100 words, total of $962.99, but still leaving blank the number of words for which the...