Kozminsky v. Williams

BEATTY, C. J.

—The defendant is justices’ court clerk of the city and county of San Francisco, and he prosecutes this appeal from a judgment of the superior court awarding a writ of mandate commanding him to file an affidavit and undertaking on attachment and to issue the proper writ.

The controversy arises out of the fact that the defendant demanded^ the payment of certain fees as a condition of filing the papers and issuing the writ, which the plaintiff contends (and the superior court has found) he was not required to pay. The case is governed by the act of March 28, 1895, establishing the fees of certain officers, including justices of the peace. (Stats. 1895, p. 272.) It is therein provided that justices of the peace may collect the following fees, and no others: “Each justice of the peace shall be allowed, in a civil action before him,

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for all services to be performed by Mm before trial, two dollars; and for the trial and all proceedings subsequent thereto, including all affidavits, swearing witnesses and jury, and the entry of judgment and issue of execution thereon, three dollars; and in all cases where judgment is rendered by default or confession, for all services, including execution and satisfaction of judgment, two dollars.”

In compliance with this clause of the statute, the plaintiff, on commencing his action, paid to the defendant the sum of two dollars, and thereupon presented a proper affidavit and undertaking, with a demand that the defendant should file them and issue the writ of attachment. But the defendant, relying upon two subsequent clauses of the statute, claimed additional fees, amounting to seventy-five cents, as a condition of filing the papers. These clauses are as follows:

“1.

For issuing each process, writ, order, or paper required by law to be issued, not otherwise herein provided for, twenty-five cents; 2. For taking and approving bond or undertaking, including the justification of sureties, fifty cents.”

The superior court held that the defendant could not demand ■ the fees here specified, because the issuance of the writ of attachment is a service to be performed before trial; that it is covered by the payment of two dollars at the commencement of the action, and therefore otherwise provided for; and because the filing and approval of the undertaking is also a part of the services covered by the same payment.