Morgan v. Haldeman , 20 Tex. 58 ( 1857 )

Hemphill, Ch. J.

The special matter complained of in this appeal, was the striking out (on a retaxation of costs in the case of T. J. Haldeman v. Th. J. Chambers et al.,) the item of ninety dollars for making a full and perfect record of all the proceedings in said case.

In all the Acts regulating fees of office prior to the Act of 20th March, 1848, there was a fee allowed for the final or complete record in all cases. No fee was provided for this service by the Act of 1848. But in this Act it was declared that for every service not otherwise provided for, the District Clerk should have such fee as might be allowed by the District Court, not to exceed, &c. Art. 792, Hart. Dig., declares that when by appeal or otherwise, a case shall be taken from the District to the Supreme Court, the Clerk of the District Court shall immediately make up a full and perfect record of all proceedings in such case, and shall on application of either party give him an attested copy of such record. This language can have no other meaning than that the Clerk should make up what at that time and previously had been known as the complete or final record. At the passage of this Act, from which the above is cited, viz., in 1846, it was the duty of the Clerk to make a final record in all cases, and to do this immediately in cases of appeal. There has been no repeal of this provision, and though no fee is now specifically allowed by the statute, for making out the complete record, yet if made out under an order of Court, the Clerk is entitled to his fee.

The order of the Court allowing a fee for the final record in each case was produced at the trial. It was agreed that the record was made in a book kept for that purpose. Upon the evidence the judgment should have been for, instead of against the appellant. (Stewart v. Crosby, 15 Tex. R. 513.) Judgment reversed and motion dismissed.

Reversed and dismissed.