104 Ala. 379 | Ala. | 1893
The other grounds urged against the clerk’s fees are, in substance, when taken together, that the clerk did not keep a fee-book, belonging to the office, as required by section 3676 of the Code, in which he entered in the form of a regular account, opened for that purpose, every fee charged for every distinct service rendered by him.
The only evidence on this subject was that of the clerk himself, offered by the movant, that the entries on the fee-book and execution docket, were not made thereon
It thus appears, and is not denied, that the clerk did keep a fee-book in his office as required by law. It is also shown that he entered the fees charged by him in the case, for every distinct service -rendered. He says he entered them in the manner, as we have them stated in the record, which appears to be a charge, one after another, in the form of a debit account, for the services rendered, and is, withal, a very intelligent statement. The objection, that .the fees were not entered at the time the services were rendered, but afterwards, from the official records and papers in the cause, is quite technical, and hardly reconcilable with justice and the requirement of the statute, which is, that the clerk shall not receive a fee for any service by him performed', not justified by a charge on his fee-book. — Code, §3677. He has not sought to do so in this case, but every item of service for which he claims a fee is shown to have been entered on the book before he claimed it. The object of the statute is, as we have held, that fee-books shall be kept open by the officers of court required to keep them, for the inspection of parties in interest, and that there shall be entered in these books, the fees for each distinct service rendered by them. To compel compliance with the law, a forfeiture of all fees is provided, if such books are not kept, or, if kept, of all fees not entered thereon. — Bilbro v. Drakeford, 78 Ala. 321. We apprehend, that a failure of the clerk to enter his fees in a cause, in this official record, until after the adjournment of the term of the court, at which the judgment was recovered — as seems to have been the case here — would not cause a forfeiture of them, when they were made up and entered in the book, before any execution was issued on the judgment, or demand made for them.
The evidence by the, sheriff himself as to his fee-book was, “that he had not kept a fee-book, and had a book on which he found two or three entries of fees earned by him in said cause,” but he did not show what these fees were. The book on which he entered the two or three fees to which he refers was necessarily a private memorandum book, for he stated that he had not kept a fee-book. On this evidence, his fees, amounting to $13.55, should not have been allowed. — Bilbro v. Drakeford, 78 Ala. 321.
The judgment of -the court below on this motion will be here corrected, to the extent of disallowing the sheriff’s fees, and as thus corrected, it is affirmed.
Corrected and affirmed.