Lead Opinion

Carl Kabelmacher died, and Emma Kabelmacher, his wife, sought to probate his alleged will. The brothers and sisters of the deceased contested Mrs. Kabelmacher's right to probate the will, and charged that Carl Kabelmacher was of unsound mind at the time that the will was made and that undue influence was used to procure the making of the will.

The case reached the District Court, where a jury trial was begun, but after the testimony was all in the court peremptorily instructed a verdict for Mrs. Kabelmacher, and entered judgment accordingly. The brothers and sisters have appealed, and assign this action of the court as error.

We have carefully examined the statement of facts, and our conclusion is that the court should not have withdrawn the case from the jury, but should have submitted the same for their decision on the issues presented. It is difficult to discuss the evidence and point out that portion of it which in our opinion entitles plaintiffs in error to have the case submitted to the jury, without intimating an opinion as to how the jury should decide. We therefore refrain from commenting upon the testimony.

On the other question presented in the briefs, we rule against the plaintiffs in error. The judgment is reversed and the cause remanded.

Reversed and remanded. *Page 326

Addendum

In the bill of costs in this case, the clerk of the District Court has charged for making the transcript, 15,789 words, at 20 cents per hundred, $31.60. A motion has been filed to retax this costs, the contention being that the clerk is entitled to only 10 cents for each hundred words, as compensation for making the transcript.

Section 22 of the fee bill passed by the Twenty-fifth Legislature (Acts Called Session Twenty-fifth Legislature, p. 12) prescribes the fees which the district clerks may charge in civil cases, and among other items contains the following: "Making transcript of the records and papers in any cause upon appeal or writ of error, with certificate and seal, each one hundred words, ten cents." It is true that section 7 of the Act of the Legislature referred to exempts certain officers, including the district clerk, in counties which cast less than 3000 votes in the last presidential election, from the operation of sections 1, 2, 3, 4, 5, and 6 of said act; but these sections all relate to fees to be paid by the State in criminal cases, and have no reference to fees earned in civil actions. Section 7 of the act is not a limitation or qualification of section 22, which, in our opinion, applies to the clerk of the District Court of every county in the State.

The motion will be sustained, and the item of costs referred to reduced to $15.80.