Green Lake County v. Waupaca County, 113 Wis. 425

113 Wis. 425 | Wis. | 1902

Wietslow, J.

Counsel for appellant seem to have the idea that the orders certifying to the compensation of the defendants’ attorneys under Stats. 1898, sec. 4713, and the order taxing the expenses of the trial under secs. 2940 and 2941, are all orders made in the criminal action, and hence that they may all be included in one notice of appeal, under Stats. 1898, sec. 3049. In this, counsel certainly are in error. Neither the proceeding to fix the compensation of counsel, nor the proceeding to tax costs in favor of one county against the other, has any real connection with the criminal action. They both arise out of such action, it is true, but neither of them concerns the defendants in the criminal action, or the issues in that action, in the least. They are plainly special proceedings growing out of the action. In the proceedings to fix the compensation of the attorney, the parties interested are the attorney whose compensation is fixed, and the county which must pay that compensation. In the proceedings to tax the expenses of the trial, the parties interested are the county in which the trial is had, and the county in which the action originated.' The parties are not the same, therefore^ in the two proceedings; and it is elementary that final orders in two different proceedings, affecting different parties, cannot be appealed from by the same notice of appeal. Such an appeal would be bad for duplicity if the notice were served on all the parties interested. In the present case, however, there was no service of the notice of appeal on Mr. Einch or Mr. Eitzgibbon. The statute requires the notice of appeal to be served on the “adverse party.” Sec. 3049. As the last-named gentlemen are the adverse parties in the proceedings to fix their compensation, there is really no appeal here from the orders fixing compensation of the attorneys, but only an appeal from the order refusing to review the taxation of costs. This order is plainly a final order affecting a substantial right in a special proceeding, and hence is appealable, under sec. 3069, Stats. 1898, and this appeal we will now consider.

1. The most serious objection made to the bill as taxed is to the items of attorney’s fees to Mr. Einch and Mr. Eitz-gibbon for defending the accused men. The case was never brought to trial, yet one attorney was allowed $210 for eighteen days’ services, and the other $367.50 for twenty-four and one-half days’ services. The statute provides (sec. 4713, Stats. 1898) that the compensation certified by the court “shall in no case exceed fifteen dollars per day for each day actually occupied in such trial or proceeding.” The attorneys were not appointed until after the venue was changed and the case was in Green Lake County. Mr. Eitzgibbon’s itemized bill shows that he was in court in Dartford on three different days, viz., January 22d, the day on which he was appointed, and on June 11th and 12th, while the remainder of the time-charged for was spent out of court, looking up witnesses, preparing for trial, making brief, and consulting with Attorney- Einch. In the case of Mr. Einch, the bill shows very much tbe same state of facts; only two days being spent in court; one of them being tbe day wben tbe case was nolled, and one tbe following day, and tbe remaining time being employed in looking up and examining witnesses and preparing for trial. Tbe appellant’s claim is tbat, under tbe statute, no allowance can be made to any attorney, save for days actually occupied in court in tbe trial, and bence tbat tbe court erred in 'allowing for days spent out of court in preparation for tbe trial. On tbe other band, it is claimed tbat days spent by tbe attorney in preparation of tbe trial ■should really be considered a part of tbe trial, because preparation is necessary for every trial, and a lawyer who did not prepare would fail in bis duty to tbe prisoner and to tbe court. Also it is urged tbat, tbe orders certifying to tbe compensation of attorneys not being before us upon this appeal, they must be considered as res adjudícala; in other words, tbat tbe question is settled by those orders, and not to be opened here. If tbe orders in question certified tbat any given number of days bad been actually spent by tbe attorney in tbe trial, and tbat be was entitled to $15 per day therefor, it is difficult to see bow tbe amount so allowed and paid by Green Lalce County could be attacked collaterally on appeal from tbe taxation of costs. But tbe orders are not of this nature. As will be seen by reference to tbe statement of tbe case, they do not state or decide tbat any given number of days were spent in tbe trial of tbe case, but simply say tbat “tbe above bill is allowed” at $15 a day for so many days, thus making tbe bill a part of tbe order. Turning to tbe bill, we find tbat all but two or three of tbe days allowed for were spent out of court. So tbe allowance amounts simply to an allowance of $15 per day for a large number of days, all but two or three of which were spent outside of tbe court. Tbe court has only power to make allowance for days actually occupied in tbe trial. It has no jurisdiction to go further. If it makes an order which appears on its face to be for days spent in something else beside “the trial,” that order is void, because there is no jurisdiction to make it; and, when the lack of jurisdiction appears on the face of the proceeding itself, it can be taken advantage of collaterally. It appearing here, upon the face of the orders themselves, that most of the time certified by the judge was time spent out of court in preparing for trial, the question arises whether •such time can be called, in any proper sense, time “actually occupied in such trial.” ''-The. desirability, nay, the absolute necessity, of preparation out of court before entering upon, the.trial of any case, must be admitted, but that is not the question here. The fact that the practice among trial judges has been quite general to allow attorneys some reasonable time for preparation may also be admitted; but, if the law be not doubtful in terms, such practice, however long continued, is of no moment. We are bound to say that the statute seems ■entirely free from ambiguity or doubt. It says, in effect, that whenever, in any criminal action or proceeding, any attorney shall, defend an indigent prisoner by order of the court, the county in which such action or proceeding may arise or be pending shall only be liable to pay such sum as the trial court shall certify to be reasonable, not exceeding in any case $15 per day for “each day actually occupied in such trial or proceeding.” A day spent in the office or in hunting up witnesses is not a day spent in the trial, nor can it be •made so by any torturing of language. It is suggested that such time may be time spent in the “proceeding,” and so may be allowed for, but this claim is untenable. As we have just ■seen, the word “proceeding” is used three times in the section. In the first two instances it is used in connection with the words “criminal action.” It is evident in these two instances that it indicates something in the nature of a criminal- action, but distinguishable therefrom, such as a proceeding to punish for criminal contempt; in other words, the word is here used to differentiate a “criminal proceeding” from a “criminal action.” There is certainly a very strong-presumption that a word used three times in a given section, of half a dozen lines, is used in the same sense every time. There would need to be some quite plain indication that it is-used with a different meaning in one instance, to justify a court in applying such different meaning. There is absolutely nothing in the present case to indicate a change of' meaning in the section before us, except that the word is used, in connection with the words “such trial,” in the last instance, instead of in connection with the words “criminal action.”' We do not think this a sufficiently cogent circumstance to indicate that a change *of meaning was intended; hence we-conclude that there is no warrant for the allowance of days-spent in preparing for trial out of court, on the ground that they are days spent in the “proceeding.” It may be said' that this is a hard rule, and so, in some respects, it is. It is-undeniably a sacrifice for a lawyer of standing and ability to devote himself to the defense of an indigent person charged with crime, and spend a number of days in preparing for trial, at the expense of his other business, and receive pay only for the days spent in the actual trial. But such lawyers-will remember that they are officers of the court, bearing a commission from the state; that they are admitted to the ranks of the bar not only that they may practice their profession on behalf of those who can pay well for their services, but that they may assist the courts in the administration of' justice. Every public-spirited, right-minded citizen recognizes that he must work at times for the good of the public-without reward or hope of reward. In the defense of indigent persons the good lawyer finds his opportunity to do this kind of labor, and he should do it cheerfully, taking the small fee given by the law, without complaint, and remembering that his best reward is the sense of a public duty faithfully performed. The ’attempt to obtain pay for day after day spent in “interviewing witnesses” and “looking up the law,” under the claim that these are days spent in the trial, cannot be for a moment approved. No way is perceived in which, with due regard to the statute, more than one day could be legally allowed to either of the attorneys in this case, namely, the day ‘upon which the cases were called for trial, and nolles entered. The fact appearing that the arraignment had taken place and the pleas entered before the appointment of the attorneys, this is the only day which by any course of reasoning can be called a day actually occupied in the trial of the case.

2. The next important item, the allowance of which is alleged as erroneous, is the charge for the services of Sheriff White for serving subpoenas on witnesses, amounting to $428.90. Most of this charge is composed of mileage for 4,144 miles traveled, at ten cents per mile. There were a large mumber of subpoenas issued in the case, and many witnesses, living in various counties, subpoenaed. Sheriff White, of "Winnebago county, served most .of the subpoenas, presumably as a matter of convenience to defendants’ counsel, one of whom lived at Oshkosh. It is entirely impossible for us to ‘tell, from the subpoenas and their returns, or from the sherj iff’s itemized bill, how much of Sheriff White’s claim is ille- . gal; but that a considerable part of it is seems entirely certain. It is true that the sheriff filed his affidavit to the effect that he served all the subpoenas, which were in his hands for service and which could be served at the same time, at the same time, and upon all persons who could be served upon the same journey, upon the same journey; but there is another provision of the statute as to sheriff’s fees, which has been disregarded. Subd. 2, sec. 731, Stats. ’1898, provides that travel in making service of all process, except criminal warrants, is to be computed in all cases from the court house of the county in which service is made. While it does not • certainly appear in the present case where the sheriff started in computing his travel, it does appear that he did not follow the statute in his computation. Thus, upon one subpoena, which, was served upon a witness residing in Milwaukee;, there is a charge of 168 miles’ travel; and there are other instances where it is equally apparent that the travel was computed from some point other than the county seat of the county where service was made. Furthermore, it is stated positively in the affidavit of Mr. Browne that Sheriff White computed the number of miles traveled in each instance from Oshkosh to the place of service, and we find no denial of this statement anywhere in the record. But as has been said, it is impossible for us to say, from anything in the record, how great the overcharge in this respect is, and hence the-amount which must be deducted from the bill cannot be determined upon this appeal.

3. The nest two items to which objection is made are the charges for thirty-one petit jurors, one day, at $2 per dayr $62, and reporter, one day, $10, and these may be considered together. There seems to be no warrant for either of them. The case was nolled on the first day of the regular jury term of court in June. A jury was in attendance for the regular work of the term, but not one of them was called te sit in this case; nor were the services of a reporter needed or utilized. To say that such charges as these are “expenses arising out of the change of venue” (Stats. 1898, sec. 2940) is simply to state that which is not true. The county in which the action is commenced must pay to the county in which it is tried the expenses which the last-named county is put to on account of such change, but this provision cannot justly be made a means of charging up and collecting from the first-named county any part of the expenses of holding a termy when such expenses are in no way increased or affected by the disposition made of the action in which the change of venue is had.

4. The last item to which objection is made upon this appeal is the item of fees of the clerk of the court for Green Lake County, allowed at $105. This is said to be an exorbi-taut charge, and we cheerfully subscribe te the statement. The temptation to run up a large bill, regardless of law, and collect it from a foreign county, which is thought to be powerless to resist the legalized wrong, appears to have been too strong for the clerk in the present case. The original bill, as rendered by the clerk, was as follows:

Entering cause for record. $0 50 $0 50

Piling 75 papers, each. 10 7 50

Entering 7 folios in court record, per folio. 10 70

Indexing. 50 50

Entering cause on calendar 2 times, each. 10 20

Issuing 53 subpoenas, 43 for defense, 10 for state. 15 7 95

Piling 30 subpoenas and return. 6 00

Entering in minutes, 11 motions, 11 orders. 15 3 30

Issuing 54 witness’s cert. 25 13 50

Issuing 54 receipts for cert., $13.50, and filing, $5.40. 18 90

Issuing 54 witness’s affidavits, $13.50, and filing, $5.40... 18 90

Indexing. 10 5 40

Issuing 31 jurors’ cert. 25 7 75

Issuing 31 receipts for jurors’ cert., $7.76, and filing, $3.10 10 85

Issuing 4 sheriff’s cert., $1; issuing 4 receipts, $1; filing, 40c.; indexing, 40c. 2 80

Issuing 2 clerk’s cert., 50c.; issuing 3 receipts, 50c.; filing, 20c.; indexing, 20c. 1 40

Issuing 1 reporter’s cert., 25c.; issuing 1 receipt, 25c.; filing, 10c.; indexing, 10c. 70

Piling 54 attorney’s statements. 5 40

Recording 11 orders, 64 folios, per folio. 10 6 40

Recording information, 3 folios, per folio. 10 30

Recording minutes. 1 00

Certifying records. 1 00

Judgment roll. 50

Postage. 50

Taxing bill of costs. 2 50

Total. $124 45

As before stated, it was finally allowed at $105. Just how'' this result was reached, does not certainly appear; but from pencil memoranda upon the original bill, as contained in the record, it seems that it was reached by disallowing two items of the bill, viz., “Issuing 54 receipts for cert., $13.50,” and “Issuing 31 receipts for jurors’ cert., $'7.75,” making a total disallowance of $21.25, which left the bill at $Í03.20, and then adding $1.80 thereto, for some unexplained reason, making a total of $105.

The clerk took his office cum onere, and all services performed by him within the scope of his official duties are deemed to be paid for by the compensation fixed by law. St. Croix Co. v. Webster, 111 Wis. 270. Hence we must refer to the statute fixing the fees for the clerk of the circuit court (Stats. 1898, sec. 747), and reject all charges in the bill presented, save such as find express warrant in the law. Giving the statute a reasonable and fair construction, we can find no warrant therein for the following items:

“Issuing 54 witnesses’ affidavits, $13.50.” These are evidently the affidavits administered to witnesses to prove their mileage and days’ attendance. The question was considered in St. Croix Co. v. Webster, supra; and it was held that the preparation of these affidavits was the duty of the witness, and that, if the clerk administers the oath, it is a service for the witness, and not for the state.

“Issuing 54 receipts for certificates, $13.50, and filing same, $5.40.” There is no warrant in the statute for either of these charges. It is true that sec. 4060, Stats. 1898, provides that the witness who receives a certificate shall receipt for the same; but no fee is given the clerk for such receipt (as before stated, this item seems to have been disallowed by the trial court) ; nor is it contemplated that there shall be a filing of such receipt as a separate paper. As a matter of fact, it is well known that the practice is to keep such receipt upon the stub of the, certificate.

“Issuing 31 jurors’ certificates, $7.75. Issuing 31 receipts for jurors’ certificates, and filing, $Í0.85.” Both these items are palpably improper. They' are simply general charges for conducting the ordinary business of the term of court for Gh'een Lalce County, which were in no way affected or enlarged by the presence of this case upon the ■calendar. Even had the case been tried, it is not perceived how these items could have been charged. They were simply a part of the regular business of a jury term of court. The •same remarks are applicable to the charges for sheriff’s, •clerk’s, and reporter’s certificates, amounting to $2.80, $1.40] and $N0, respectively.

“Filing 54 attorneys’ statements, $5.40.” These statements consist of printed certificates signed either by the dis"trict attorney or by the attorney for the defendant, each certifying that a certain named witness is entitled to a specified number of days’ witness’s fees and a certain number of miles -of travel. We have been referred to no statutory provision requiring or even authorizing such certificates, and we have ■not been able to find any. They are not entitled to be filed, and hence no fee is recoverable for them.

“Judgment roll, $.50. Taxing bill of costs, $2.50.” So far as we are informed, the term “judgment roll” is-appli■cable only to civil causes. Stats. 1898, sec. 2898. As to the •charge for taxation of the bill of costs, we find no warrant for it in the statute; the only charge for taxing costs authorized thereby being twenty-five cents for taxing coáts in civil •causes.

Our conclusion is that the bill must be retaxed in accord■ance with the principles laid down in this opinion. Upon •such retaxation, it will be necessary to take additional proofs ■with regard to the mileage of Sheriff White; otherwise there •seems no occasion for additional testimony.

By the Court. — The order affirming the taxation of costs is reversed, and the proceeding remanded with directions to -.retax costs in accordance with this opinion.