KERR v. UNITED COLLECTION SERVICE

KERR v. UNITED COLLECTION SERVICE
1954 OK 69
267 P.2d 611
Case Number: 35704
Decided: 03/02/1954
Supreme Court of Oklahoma

Syllabus by the Court

¶0 Constable fees are statutory and such statutory taxable cost must be recovered, if recoverable, in the original action and not by subsequent suit.

Appeal from the Common Pleas Court of Tulsa County, Lewis C. Johnson, J.

W.R. Kerr, Tulsa, for plaintiff in error.

Merrill S. Bernard, Tulsa, for defendants in error.

JOHNSON, V.C.J.

¶1 This is an appeal from an order of the trial court sustaining a demurrer to plaintiff's petition filed in a subsequent and separate action which alleged that plaintiff's deceased was a constable and earned fees as such in a large number of cases which were filed for numerous defendants by defendant Bernard as lawyer; that Bernard and the other defendants constituted a collection agency which received the accounts on which these original suits were predicated with the agreement between defendants and those to whom such accounts were due, that the former would hold the latter harmless as to all costs involved in collecting such accounts; that a large number of such cases so filed resulted in plaintiff's earning fees which were due and totaling a large sum of money as such costs or fees, concluding with a prayer for recovery of earned fees against defendants in the separate and subsequent action.

¶2 The demurrer was properly sustained. The petition did not state a cause of action. There is no common-law rule that permits recovery of expenses of litigation. If any such right exists it must be statutory. One entitled to recover statutory taxable cost (including constable fees) must do so in the original action, and not by a subsequent suit. Stone-Easter, Inc., v. City of Seattle, 121 Wash. 520, 209 P. 687, 215 P. 56. For other cases see 5th Dec. Dig., Costs, 3, page 850.

¶3 Affirmed.

¶4 HALLEY, C.J., and CORN, DAVISON, O'NEAL and BLACKBIRD, JJ., concur.

¶5 WILLIAMS, J., dissents.