Shackelford v. Phillips

| Ky. Ct. App. | Jan 29, 1902

Lead Opinion

.•Opinion op the court by

JUDGE DuRELLE —

Reversing.

' In April, 1900, appellant, as clerk of the court of appeals, issued a fee bill against appellee, Phillips, for fees claimed to be due appellant amounting to $114.05, on the appeal of Eusebia Q. Phillips against E. A. Burton, reported in 21 R., 720 (52 S. W., 1064). Before the fee bill was placed in •the hands of the sheriff appellee paid the clerk all of the bill except the item of $105.30 charged for copy of transcript, •conceded not to have been made by the clerk; the actual • service being a loan of the original transcript to counsel for appellee, who was appellant in that case. The sheriff of .Marion county, under the direction of the clerk, levied the .'fee bill upon Mrs. Phillips’ horse and buggy, whereupon she .(and her husband brought suit in the Marion circuit court to enjoin Shackelford aud the sheriff from proceeding to ■a sale under the levy. A recovery for damages was also sought. Upon final hearing, the trial court perpetuated the temporary injunction which had been granted.

The first question is as to the jurisdiction of the Marion • circuit court, it being argued that a motion to dismiss for want of jurisdiction should have been sustained, and that •the only remedy was by motion before this court to correct the fee bill. If this were an execution for costs, a • suit to restrain a levy and sale under it would be prohibited 'by writ from this court, as held in Shackelford v. Patterson (24 R., 316) 62 S. W., 1040. But the fee bill in this case has none of the elements of a proceeding under a judgment. The officer issuing such a fee bill has by statute the right to the extraordinary remedy of distress to enforce its collection, but in granting this remedy the Legislature has held the officer to extraordinary accuracy, and in section 17oá, et seq., Kentucky Statutes, has provided that a single illegal charge shall render the whole bill Void, has imposed a penalty for an. illegal or double charge,, has made such charge a high misdemeanor, and in section 1757 has provided for an action for damages for a distress made by virtue of a fee bill ‘‘if it contains any illegal or improper item, or an item for which the services have not been rendered,” etc. In sections 1758 and 1759 a summary remedy is provided by application to the circuit judge, without pleadings, for the correction of illegal fee bills of any officer, and for an order to stay proceedings on such fee bill upon the presentation to the judge of a copy of the fee bill containing the illegal charge. We do not think that the grant of power to the circuit, judge by such summary proceedings to stay proceedings under the distress until the matter is determined in court can be held to deprive the court of power upon a regular suit in equity to enjoin the collection of such a fee bill, to grant relief by injunction.

The next question is as to the jurisdiction of this court on appeal, it being claimed by appéllee that as the judgment restrained the collection of a fee bill less in amount than $200 this court has no jurisdiction. Upon this question it seems to us we have only to determine- whether a judgment enjoining the collection of a fee bill is a judgment for the recovery of money or property. If not, the court 'has jurisdiction; for, under the statute, it had appellate jurisdiction over the final orders and judgments of all courts in all other civil cases except “appeals from a judgment for tlie recovery of money or personal property, if the value in controversy be less than $200,” etc. Kentucky Statutes, section .950. In Ex parti Herrick, 78 Ky., 24, it was held that .an order allowing and certifying a witness' claim to the .auditor for payment was not á judgment for/ money or personal property, within the meaning of the .statute, and therefore that an appeal lay from such an order. We .ar.e -clearly of opinion that a judgment enjoining a sale under distress by virtue of a fee bill is not a judgment for the.recovery of money or personal property, within the me.a-ning of the statute.

There remains for consideration the question whether the charge in this ease was an illegal one. It is urged on behalf of appellee that it is clearly forbidden by the statute, as being “an item for which the services have not been rendered,” and .that the service which was actually ren-dered, and compensation for which is sought under a 'charge for copy of transcript, viz., the loan of the original transcript from the office, was in violation of the clerk’s oath of office. The majority of the court, however, are of the opinion that, whatever miglit have been their view upon this question as an original proposition, the opinion of Judge Hines in Parrish v. Ferguson, 83 Ky., 18" court="Ky. Ct. App." date_filed="1884-11-20" href="https://app.midpage.ai/document/parrish-v-ferguson-7131611?utm_source=webapp" opinion_id="7131611">83 Ky., 18 (6 R., 316), and the opinion ;of Judge Paynter in Minor v. Christie (23 R., 1569, 65 S. W., 826) are conclusive in favor of the clerk’s right to make such charge for the loan of the original trans-script. The writer does not concur in this conclusion.

For the reasons given, the judgment is reversed and the cause remanded, -with directions to dismiss the petition.

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Rehearing

Response by

Judge DuRelle

to petition by appellee for prehearing-:

Assuming that ;a ¡litigant, in person or by counsel, may make a binding contract with the cleric to pay the fees allowed by law for ii copj< of the record as compensation, for the loan of the record, it follows necessarily that such., contract may be implied from the conduct of the parties,, and is to be implied when counsel familiar with the custom obtains from the clerk the loan of the record.

The petition is overruled.