17 S.D. 353 | S.D. | 1903
This is an appeal from an order made by the circuit court of Lake county directing the clerk of that court to retax the costs in this action by adding to the costs theretofore taxed the sum of $13.30 sheriff’s fees, the same being the item of sheriff’s fees theretofore disallowed by him; and that the same be entered in the judgment as a part of the costs in the action. This is one of forty actions brought by the stock
This item of costs was objected to in the court below upon substantially the following grounds: (1) Because H. B. Williamson, who served the summons, complaint, and order, was not a deputy sheriff duly appointed and qualified as required by law, and was a party to one of said actions, and in the employ of the corporation of which all of said plaintiff’s were stockholders. (2) No return was ever made on said papers by any sheriff or legal deputy. (3) That no fees should be allowed for copies of said summons, complaint, and order, for the reason that they were all printed by the plaintiff, and said officers made no such copies, and there is no law authorizing the taxation its costs fees for copies so made by plaintiff,
The second contention was made evidently upon the theory that, the return being made by H. B. Williamson, who the appellant claims was not a legal deputy, there was, therefore, no legal return. The objection that the sheriff should not be allowed fees for the service of copies of the papers for the reason that they were printed by the plaintiff is clearly untenable. It is not a matter of any concern to the defendant as to the method in which the sheriff or his deputy secured copies to be served. If an officer serve copies as provided by law, 'he. is entitled to his fees for such copies as against the opposite party, and may require such fees in advance. Section ' 1858, Pol. Code.
The only question, therefore, to be considered is whether the respondent is entitled to tax as a disbursement the item of $13.30, sheriff’s fees, the papers having been served by a deputy whose appointment and oath of office had not been filed as required by law. It is contended by the appellant that the officer serving the papers was not a legal deputy, and, not being such, he was not entitled to the fees for the service of the papers, and hence, if the plaintiff has paid the fees to thq
The order appealed from is affirmed.