Coleman v. Northern Pacific Railway Co. , 41 Mont. 123 ( 1910 )

MB. JUSTICE SMITH

delivered the opinion of the court.

■ The complaint in this action alleges that between the fifteenth and twentieth days of December, 1908, the defendant engaged and employed the plaintiff as a notary public to take the depositions of certain witnesses in the case of Ethel Berry against the Northern Pacific Bailway Company, then pending in the district court of Silver Bow county, which depositions were then and there taken before plaintiff, as notary public, at the instance and request of the defendant, “for which plaintiff was entitled to the sum of $61.80, fees as provided by the laws of Montana,” and by reason of the premises defendant became indebted to plaintiff in the sum mentioned, for which judgment is demanded. The answer was a general denial.

The testimony shows that plaintiff was .employed by John G. Brown, Esq., one of the attorneys for the defendant, to take the depositions; that he, as notary public, swore the witnesses; whereupon their testimony was taken in shorthand by one Frank Eiley, a stenographer employed by the defendant. After the testimony was transcribed by Eiley, plaintiff attached his certificate to each deposition as notary public. He made no objection to the employment of Eiley, and the latter has been fully paid for his services by the defendant, at statutory rates, the plaintiff being notified of such payment. The district court of Silver Bow county held that, if Brown employed Eiley, plaintiff was entitled to recover the full amount claimed, but that, if Eiley was employed by the plaintiff then the latter was not entitled to recover. Plaintiff’s position was that he was entitled to full compensation under the statute, regardless of whether he did the manual labor or not. He was not present during all of the time when the witnesses were testifying, but, as he says, he “supervised the whole thing.” The district court directed a verdict in favor of the plaintiff for $61.80, judgment was entered thereon, from which judgment, and an order denying a new trial, defendant has appealed. The cause originated 'in a justice of the peace court, and was taken to the district court by appeal.

"We think the district court entertained an erroneous view as to the plaintiff’s rights. The statute relied on for recovery reads, in part, as follows: “Sec. 3165 [Eevised Codes]. Fees of notaries public. * * * For drawing an affidavit, deposition, or other paper, * * * for each folio unless otherwise prescribed, twenty cents. For taking an acknowledgment or proof of a deed or other instrument, to include the seal and the writing of the certificate, for the first signature, one dollar. For each additional signature, fifty cents. For administering an oath or affirmation, twenty-five cents. For certifying an affidavit, with or without seal, including oath, fifty cents.”

When the plaintiff was employed to take these depositions by Mr. Brown, it was his privilege to do one of three things, viz.: (1) He could write out the testimony himself, or (2) employ a ■stenographer to do so at whatsoever compensation might be •agreed upon between them, or (3) allow the defendant to furnish the stenographer. In the first two cases he might legally •charge full statutory rates for the work of taking and transcribing the testimony. In the third ease he could not so charge, for the very obvious reasons: (1) That he did not perform the. work; and (2) by failure to insist upon his right to furnish the •stenographer, he impliedly consented to the employment of that person by the defendant. As Riley has been fully paid, it would be manifestly unjust to compel the defendant to pay twice for the same services. The general policy of the law on the subject of double payment for services is clearly indicated by section 7199, Revised Codes, which reads as follows: “In all eases where copies of pleadings, affidavits, or other papers are to be served, neither the sheriff nor clerk shall charge or receive ■a fee for making such copies when the same are furnished to ■such officer by the party to the action or his attorney.”

We have not had the benefit of any argument, either written or oral, in behalf of the respondent, and are therefore unable to ascertain how he arrived at the amount claimed, to-wit, $61.80, The depositions contained two hundred and ninety-four folios of testimony, which, at twenty cents per folio, would amount to $58.80. This sum is $3 less than the amount claimed; whereas, the amount actually due him was $1.50 for certifying the three depositions, including the administering of the oaths. It does not appear- that any tender or offer of judgment was made by the defendant, and it was therefore necessary for the plaintiff to invoke the aid of the courts in order to recover the amount due him.

The cause is remanded to the district court, with direction to reduce the judgment to the sum of $1.50, and, as so reduced, it will stand affirmed. The order denying a new trial is affirmed. Let the costs of appeal be paid by the appellant.

Modified and affirmed.

Mr. Chief Justice Brantly and Mr. Justice Holloway concur.