44 Ind. App. 659 | Ind. Ct. App. | 1908
Lead Opinion
Action by relator on two consecutive bonds given by appellee Carey, formerly clerk of the Hamilton
The question duly presented for decision is, Did the amounts received by appellee Carey, as clerk, from various parties, for making the aforesaid transcripts, belong to him, or were the same the property of the county, which he was required to pay into the county treasury by virtue of an act of the General Assembly approved March 11, 1895 (Acts 1895, p. 319, §114, §7324 Burns 1908) ?
By §690 Burns 1908, §649 R. S. 1881, it is provided: “Upon the request of the appellant * * * upon the payment of the proper fee, the clerk shall forthwith make out and deliver to the party, at his request, or transmit to the Clerk of the Supreme Court, a transcript of the record in the cause * * * certified and sealed, ’ ’ etc. By §424 Burns 1908, §413 R. S. 1881, it is provided: “When a change of venue is directed, * ® * the clerk of the court in which the suit is pending, as soon as the costs of the change are paid, shall forthwith transmit all the papers and a transcript of all the proceedings to the clerk of the court of the county to which the venue is changed. ’ ’ Section 7324, supra, provides: “The clerks of the circuit, criminal and superior courts of this State on behalf of the county in which said courts are held, shall tax and charge upon proper books * * * the fees and amounts provided by law, * * * but they shall in no sense belong to and be the property of the clerk, but shall belong to and be the property of the county; said clerk shall tax and charge: * * * For copying any record or paper when demanded by any per
Appellees insist that it was not the duty of Carey, as clerk of the Hamilton Circuit Court, to make out said transcripts, and therefore any compensation received by him on account thereof did not come within the fee bill to be taxed as property belonging to the county.
For the reasons before given, we are required to hold that the court below erred in its conclusions of law.
Rehearing
On Petition eor Rehearing.
The Federal Union Surety Company has filed a petition for a rehearing in this cause, and reargued the questions considered and decided in our original opinion. Upon a reexamination of the authorities to which our attention has been called, we find no reason to change our former conclusion.
Petition overruled.