400 So. 2d 406 | Ala. | 1981
RULE 40 (B), ALABAMA RULES OF JUDICIAL ADMINISTRATION — FEES AND COSTS — PREPARING CLERK'S RECORD AND RECORD ON APPEAL
Mr. Kyle Lansford, Circuit Clerk and Register, Shelby County, has submitted to me, as Clerk of the Supreme Court, pursuant to §
(1) Shall the cost be paid by the appellant at the time the appeal is completed and mailed?
(2) Shall the appellant pay for original copy which is mailed to the Supreme Court or Court of Civil Appeals, the additional three copies which are distributed to the attorneys for the appellant and appellee, and the copy that is retained in the office of the circuit clerk?
(3) Shall the circuit clerk collect the postage for mailing the copies?
(4) Shall the clerk hold the money collected for the preparation of the clerk's record until the appeal has been finalized and the cost taxed?
The answer to the first question is that the appellant shall pay to the clerk of the trial court the costs of preparing the record on appeal at the time it is completed.
The answer to the second question is that the appellant shall pay for the original record on appeal and any additional copies that he may order.
The answer to the third question is that the circuit clerk shall not collect postage for mailing the original record on appeal to the appellate court.
The answer to the fourth question is in the negative.
Fees are compensation for services rendered by an officer in the progress of a cause. Bradley v. State,
Rule 10 (b)(1), Alabama Rules of Appellate Procedure, provides that the appellant shall, within seven days after filing the notice of appeal, order and designate the parts of the clerk's record to be presented on appeal.
Fees should be paid by the parties at whose instance services are rendered. South North Ry. Co. v. Bradley,
It is my opinion that fees for preparing the clerk's record and completing the record on appeal should be paid by the appellant to the clerk of the trial court at the time the record on appeal is completed, as shown by the clerk's certificate of completion.
It is my opinion that the appellant should pay for only the original record on appeal and an additional copy that he may request to be filed in the appellate court. Parties who want a copy of the record on appeal should pay the clerk for a copy in accordance with the schedule stated in Rule 40 (B), Alabama Rules of Judicial Administration.
(H) The clerk and register shall, periodically, but in no event less than once a month, not later than the tenth day of each month, remit all fines, forfeitures and costs of court, including prepaid docket fees, to the official designated to receive such at the municipal, county and state level, as provided by law or rule.
It is my opinion that fees received by the clerk for services rendered to the appellant in preparing the clerk's record and completing the record on appeal should be remitted in accordance with Rule 4 (H) in the same way that prepaid docket fees are remitted.
The procedure concerning costs after the appellant has paid the fees for preparing the clerk's record and the record on appeal is governed by Rule 35 (c), Alabama Rules of Appellate Procedure, together with §
Costs are an allowance to a party for expenses incurred in the successful prosecution or defense of a suit. Bradley v.State, supra; see Opinion of Clerk, No. 10, supra. See alsoCounty of Sutter v. Superior Court, supra, and Dade County v.Strauss, supra.
Rule 35 (c), Alabama Rules of Appellate Procedure, provides that the cost of producing necessary copies of the clerk's record and the reporter's transcript shall be taxable in the trial court. Section
Execution by lower courts for unpaid costs.
*409Clerks of the circuit court and probate judges, when cases have been taken from their respective courts to an appellate court by appeal or other lawful mode and been there decided, if the costs accruing in such lower courts for transcripts, or otherwise, are not paid by the parties against whom they were adjudged in the appellate court, may issue executions for costs, returnable into the court in which such costs accrued.
If the appellee is ordered to pay the costs, the appellant has recourse to Rule 35 (c), Alabama Rules of Appellate Procedure, and §