Mantz v. Werner , 64 Wis. 408 ( 1885 )

Oole, C. J.

The motion to remand this cause to the circuit court of Manitowoc county should have been granted. Assuming, as we may do for the purposes of this appeal, that all the proceedings to change the place of trial were regular up to the time the order dated November 21, 1884, was obtained, still that order only extended the time for the transmission of the record to November 25, 1884. But the record was not actually filed with the clerk of the circuit court of Milwaukee county until the 28th of November, three days after the extended time had expired. The change was not complete until the record was filed with the clerk. Sec. 2627, E. S. It is true the record was received by the clerk on the 25th of November, but it was not filed by him because the fees were not paid. The clerk of the circuit court of Milwaukee county is paid a salary, and the fees provided by law for the clerks of the circuit courts of other counties are received and accounted-for by him under oath to the treasurer of the county quarterly. Ch. 311, P. & L. Laws of 1862. The failure or neglect of the clerk to collect and thus account for the prescribed fees constitutes a breach of his official bond. By ch. 451, P. & L. Laws of 1871, it is provided that there shall be paid to said clerk at the time of the commencement of each action or proceeding instituted in the circuit court or county court, or upon filing the original papers in any suit or proceedings in either of said courts, upon an appeal from an inferior court, or upon a change of venue from some other county, — except in criminal cases,— the sum of two dollars, in addition to the state tax and county tax required to be paid. In view of these very stringent provisions, it was plainly not the duty of the clerk to file the record before the proper fees were paid.

It is said when the plaintiff had the record delivered to the clerk pursuant to the order, there his duty and power in respect to it ended. But this is a mistake. It was the plaintiff’s duty to pay the clerk the prescribed fees for filing the papers. The clerk was under no legal duty to file them until such fees were paid. And the jurisdiction of the court would not attach in the case until the papers were filed.

It is stated in the affidavit of one of the plaintiff’s attorneys, which was used in resisting the motion to remand the cause to Manitowoc county, that the clerk had always treated the firm of which he is a member as responsible for all fees and dues chargeable in any case against the party for whom the firm are attorneys of record, and has never demanded or exacted payment in advance for any such fees. Such a practice between the clerk and attorneys is not deserving of judicial condemnation, if the clerk chooses to observe it, and is willing to become personally responsible for the fees to the county treasurer. But the law is clear and mandatory that the prescribed fees must be paid the clerk upon filing the original papers, on a change of venue; consequently, the clerk was guilty of no dereliction of duty because he did not file them when they were delivered to him. The law made it the plain duty of the party procuring the change to pay these fees as a condition to the papers being filed. This was not done within the time limited in the order.

In the view we have taken of the case, it is unnecessary to consider whether the order changing the place of trial from Manitowoc to Milwaukee county was a proper exercise of discretion on the part of the circuit court; or whether the time for the transmission, of the record conlcl be enlarged by an ex parte order after the original twenty days had expired. These points are quite fully argued on the briefs of counsel, but we express no opinion upon them at this time.

By ike Oourt.— The order of the circuit court is reversed, and the cause is remanded with directions to send the case to Manitowoc county for trial.