189 P. 984 | Or. | 1920
_ “The jury trial fee is $12, to be collected at the time and in the manner following: In all actions and appeal cases wherein the parties may be entitled to a trial by jury, the clerk shall, at least four days before the cause is called to be set for trial, collect from- the plaintiff or appellant the jury trial fee, unless the plaintiff or appellant shall have filed a statement in writing entitled in the cause to the effect that a trial jury is waived. If the plaintiff or appellant shall have filed a waiver, or shall have refused or neglected to pay the jury trial fee, as above mentioned, the clerk shall, at least two days before the cause is called to be set for trial, collect from the defendant or respondent the jury trial fee, unless the defendant or respondent shall have filed a statement in writing entitled in the cause to the effect that a trial by jury is waived. Cases wherein the jury trial fee has not been paid, as above provided, shall be tried by the court without a jury, unless the court shall otherwise order. If a case wherein the jury trial fee has not been paid, is tried by a jury by order of court, it shall be the duty of the clerk to tax against the losing party as costs, to be collected for the benefit of the county the sum of $12. The court" may, if the order is made ten days before the date set for trial thereof, provide, in disposing of a case settled or dismissed, that the party who advanced the jury trial fee is entitled thereto, and such recital shall be sufficient authority for repayment thereof by the clerk. No order to return the jury trial fee shall be made after a case has been set for trial and continued. The trial fee of $6.00 above provided, shall not be exacted in any case wherein a jury trial has been paid by either party and not refunded. The jury trial fee shall be collected for each trial of the case .by a jury, and as above provided. The trial fee herein provided, shall*349 be deemed disbursements, and may be taxed and collected as other costs and disbursements by the prevailing party. The jury trial fee shall not be exacted in criminal actions.”
In 1915 the legislature amended Section 1117, L. O. L., by enacting Chapter 83, Laws of 1915. The amendatory act, so far as it is material here, reads as follows:
“The jury trial fee is $12, to be collected at the time and in the manner following: The clerk shall collect from the plaintiff or appellant, at the time such action, suit or proceedings come on for trial by a jury, a jury trial fee. If the plaintiff or appellant shall waive a trial by jury, and the defendant or respondent desires a trial by jury the clerk shall collect from the defendant or respondent the jury trial fee. Cases wherein the jury trial fee has not been paid, as above provided, shall be tried by the court without a jury, unless the court shall otherwise order. * * ”
By the terms of Section 1117, L. O. L., as it originally read, the clerk was required, “at least four days before the cause is called to be set for trial,” to collect from the plaintiff or appellant the jury trial fee; and if the plaintiff or appellant had filed a waiver, or neglected to pay the fee, the clerk was required “at least two days before the cause is called to be set for trial” to collect from the defendant or respondent the jury trial fee, unless he has filed a statement waiving a trial by jury. But by the amendatory act the legislature has required the clerk “to collect from the plaintiff or appellant, at the time such action, suit or proceedings come on for trial by a jury” the jury trial fee; or, if the plaintiff or appellant waives a trial by jury, the clerk shall collect the fee from defendant or respondent,
The defendant Stein paid the fee at the time required by law, and he was entitled to a trial by jury. The judgment is reversed and the cause is remanded.
Reversed and Remanded.