Anderson v. Pennie

By the Court, Shafter, J.: Mandamus. The complaint alleges that the defendant is the Justice of the Peace of the Third Township of the City and County of San Francisco. That on the 4th of March, 1867, one James G. Gould commenced an action in said Justice’s Court against the relator herein, to recover the sum of eighty-seven dollars and costs of suit. That summons was issued, served, and returned, and that on the return day the plaintiff in said action filed with the said Justice the following order:

“In the Justice’s Court of the Third Township in and for the City and County of San Francisco :

“ James G. Gould v. F. C. Andebson.—Entry of judgment on discontinuance.

“ James C. Pennie, Esq., Justice of the Peace, Third Township, in and for the City and County of San Francisco—Sir: Please enter judgment of discontinuance and satisfaction in the above entitled case.

“ Yours respectfully,

“Buchan & Wade,

“Attorneys for Plaintiff.

“ San Francisco, March 16th, 1867.”

That thereupon the relator, defendant in said action, requested the defendant herein to enter a judgment according to the said order, with which request the defendant refused to comply, unless the relator, or the plaintiff in said action, should pay him the sum of three dollars as. his fees for the entry of said judgment; and the said defendant still neglects and refuses to enter the said judgment, except upon compliance with the said unlawful demand. It is further alleged that all the fees due in said action, to wit, the sum of two dollars for [267]all services required to be performed by the defendant before trial, have been paid to him, and that no other fees are due.

A peremptory mandate is prayed for, directing the defendant to enter the judgment named in the order of Gould. The case has been submitted as on demurrer to the complaint.

The question raised turns upon the construction to be given the fifth section of “ An Act to regulate fees in the City and County of San Francisco,” approved February 6th, 1866. (Acts of 1865-6, p. 66.) The section is as follows: “ The Justices of the Peace, severally, shall be allowed, in any action before them, for all services of every kind whatsoever required to be performed by them before the trial in such action, two dollars; and for the trial and all proceedings subsequent thereto, including all affidavits, swearing witnesses and jury, and the entry of all judgments therein, three dollars; and under no pretext whatever shall said Justices in any one action be authorized or legally entitled to ask, demand or receive any other or further fee or charge, except for copies of papers on appeal, as hereinafter provided.”