74 Neb. 31 | Neb. | 1905
The plaintiff below, who is plaintiff in error here, brought this action to recover from the defendant, as clerk of the district court for Dixon county, several pen
The determination of this case then depends upon
Certainly the defendant could not be required to perform the services required of him in this case for the compensation to Avhich he is entitled for his certificate and seal. As before pointed out, the clerk Avas expected to make a compilation upon these documents of the result of his searches of his records. Just how extensive these compilations would necessarily be, is not clearly shown in the evidence. This Avork Avas no part of the duties of his office, and if he consented to x>erform it, he might, of course, make such reasonable charges therefor as he saw fit. The evidence, lioAvever, clearly sIioavs that the charge which he did make Avas intended to cover the work of searching the records, as Avell as the making of these comx>ilations upon the abstracts, and formulating the statements of fact to which he Avas expected to certify. Of course, he could not charge in this case a fee for making a search of' his record. The statute, after prescribing other fees of the district court, provides: “Every search made by the clerk, where no other service is rendered to which any fee is attached, fifteen cents.” Sec. 3, ch. 28, Comp.. St. 1903 (Ann. St. 9029). In M’Caraher v. Commonwealth, 5 Watts and Serg. (Pa.) 21, 39 Am. Dec. 106, the court said:
“No stronger evidence can be given of the duty of an officer, than that the laAV gives him a fee for the performance of it.”
Even if it should be thought that this statute imposes no duty upon the clerk to make search of his records, still it clearly authorizes him as such clerk to make such search, and in a proper case to make a charge therefor. If, therefore, he does at the request of an individual make such search, his fees for so doing are, Avithout any
We think, therefore, that the district court was right in instructing the jury to return a verdict for the defendant. The judgment is therefore
Affirmed.