United States v. Kurtz
164 U.S. 49 (1896)

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U.S. Supreme Court

United States v. Kurtz, 164 U.S. 49 (1896)

United States v. Kurtz

No. 530

Submitted October 13, 1896

Decided October 26, 1896

164 U.S. 49


A clerk of a circuit court who is directed by the court to keep a criminal final record book, in which are to be recorded indictments, informations, warrants, recognizances, judgments, and other proceedings in prosecutions for violating the criminal laws of the United States, is not entitled, in computing folios, to treat each document, judgment, etc., as a separate instrument, but should count the folios of the record as one instrument continuously from beginning to end.

A clerk's right to a docket fee, as upon issue joined, attaches at the time such issue is in fact joined, and is not lost by the subsequent withdrawal of the plea which constituted the issue, and this rule applies to cases in which, after issue joined, the case is discontinued on nol. pros. entered.

When a list of the jurors, with their residences, is required to be made by the order or practice of the court, and to be posted up in the clerk's office or preserved in the files, and no other mode of compensating the clerk is provided, it may be charged for by the folio.

The clerk is also entitled to a fee for entering an order of court directing him as to the disposition to be made of moneys received for fines, and for filing bank certificates of deposit for fines paid to the credit of the Treasurer of the United States.

This was a petition by Kurtz, who was clerk and commissioner of the Circuit Court for the Eastern District of Wisconsin, for fees alleged to have been earned by him in both capacities.

The case resulted in the allowance of a large number of disputed items, and a final judgment in favor of the petitioner in the sum of $165.10. The government appealed, and

Page 164 U. S. 50

assigned as error the allowance of certain items specifically set forth in the opinion.

MR. JUSTICE BROWN delivered the opinion of the Court.

1. The first assignment of error is taken to the allowance to the petitioner of clerk's fees for recording in the final record books the entries and proceedings in various criminal cases, consisting of the indictment or information, warrants, recognizances, judgments, and other proceedings, as required by rule of court at fifteen cents per folio. It seems that these records were made by him in compliance with a rule of the circuit court adopted November 3, 1890, requiring the clerk to keep a criminal final record book, in which should be recorded

"the indictment or information, and all recognizances, warrants, process (except writs of subpoena and proceedings thereunder), judgments, and other proceedings in every prosecution for violation of the criminal laws of the United States."

For making up these records the clerk charged a fee of fifteen cents per folio, in pursuance of the eighth subdivision of Rev.Stat. § 828, which entitles him to this amount "for entering any return, rule, order, continuance, judgment, decree or recognizance, or drawing any bond, or making any record, return or report." The only objection was to the clerk's method of computing folios by treating each document, judgment, order, and direction of the court as a separate instrument for the enumeration of folios, instead of counting the folios of the record as one instrument continuously from beginning to end.

The assignment is well taken. By his method of computation, the clerk charges for each entry, many of which are less than a dozen words in length, as for one hundred words. This may be proper where the charge is made under the first clause of the paragraph, "for entering any return, rule,

Page 164 U. S. 51

order," etc., upon the journal of the court, but the evident intent of the statute is that, for the purpose of making up the record as a history of the case, the entire record shall be taken as one instrument.

2. The next item to which the government objects is to the allowance for making dockets, indexes, taxing costs, etc., in nine cases, in which defendants at first pleaded not guilty, and at a later day, with no steps or proceedings intervening, withdrew such plea, pleaded guilty, and judgment was entered upon such plea.

In this connection, section 828 provides as follows:

"For making dockets and indexes, issuing venire, taxing costs and all other services on the trial or argument of a cause where issue is joined and testimony given, three dollars."

For like services "in a cause where issue is joined, but no testimony is given, two dollars."

For like services "in a cause which is dismissed or discontinued, or where judgment or decree is made or rendered without issue, one dollar."

The argument of the government is that, as the plea of not guilty, which constituted the issue, was withdrawn and a plea of guilty subsequently entered, upon which judgment was rendered, the case should be treated as one in which no issue was ever joined, and that the condition in which the case stands when finally disposed of is the criterion for the fee to be charged; in other words, if the case be finally disposed of upon a plea of guilty, regardless of the issue previously joined, the clerk is only entitled to the fee which would have been allowed him if no issue had ever been joined.

While we have held that a docket fee is not taxable until the case is finally disposed of, United States v. McCandless,147 U. S. 692, 147 U. S. 694,

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