16 Cal. 386 | Cal. | 1860
Cope, J. and Baldwin, J. concurring.
This is an action for money alleged to have been received by the defendant for the use of the plaintiff, and arises upon the following facts. In May, 1860, one Castro instituted a suit in the District Court for the county of Alameda, against one Huce and seventy-nine others, and obtained from the Clerk, for service, certified copies of the summons, complaint and injunction in the case. These copies, with the certificates ready to be signed, were printed, and were handed by the attprney of Castro to the defendant, who is the Clerk of the Court, with a request to his deputy to see that they were properly prepared and certified. The fees charged by the Clerk in the case—and we infer that they were for the copies referred to, including the originals— amounted to $2,040, (less sixty dollars for the printing) and of this sum $1,700 were paid to him by Castro. Of the copies, certified as we have stated, service was made by the plaintiff, who is the Sheriff of the county, upon sixty-nine of the defendants; and the questions presented for consideration are, whether he is entitled to charge fees for the copies of the summons and injunctions served, as if they were made by himself; and if so, whether he is entitled to recover the amount of such fees out of the moneys received by the Clerk from Castro. It is admitted that these fees amounted to five hundred and fifty-two dollars.
The Act of April 28th, 1857, Regulating the Fees of Office in Certain Counties, originally applied to the offices in Alameda county. (Session Laws of 1857, Ch. 236.) The amendatory Act of March 5th, 1858, excepted them from its operation, and applied the Act of April 10tli, 1855, to the fees of office of that county, (Session Laws of 1855, Ch. 55.) The amendatory Act of April 18th, 1859, restored the operation of the original Act of 1857, so far as to embrace the offices in Alameda county. (Session Laws of 1859, Ch. 278.) The counsel for the respondent is, therefore, mistaken, in supposing the fees
It follows that the judgment must be reversed, and the cause remanded; and it is so ordered.