DocketNumber: No. 12895.
Citation Numbers: 57 S.W.2d 353
Judges: LATTIMORE, Justice.
Filed Date: 1/21/1933
Status: Precedential
Modified Date: 1/12/2023
The city of Fort Worth filed a suit in which an answer was filed. Thereupon the plaintiff dismissed the suit. The clerk taxed as costs a stenographer's fee of $3. On "motion to retax costs" directed against any such charge, the clerk appeared, and the trial court ordered such charge stricken from the bill of costs. Alexander, district clerk, has appealed to this court where the cause was consolidated with (Tex.Civ.App.)
At the outset we are met with a plea to the jurisdiction, on the ground that the appellant district clerk is not a party to the suit below, and that no party to such suit has appealed.
The question of the taxing of the fee was raised by a proceeding styled "motion to retax costs," such application containing nothing except the complaint against the stenographer's fee, and that only on the ground that there is no law for the taxing of same in this case. To such complaint the appellant appeared in open court as recited in the order of the court.
The taxing of costs is a clerical act. Parker v. Boyd (Tex.Civ.App.)
In Lockart v. Stuckler,
Cases such as Nail v. Wolfe City Nat'l Bank (Tex.Civ.App.)
In State v. Bigham (Tex.Com.App.)
If a suit for an injunction was in fact a motion to retax costs, and "The old Alcalde" could look to the substance and not the name, Hutson v. Clark (Tex.Civ.App.) *Page 354
3 S.W.2d 484, Galbraith v. Bishop (Tex.Com.App.)
Thus we have concluded, after considerable doubt, that we have jurisdiction over this appeal in which the parties against whom relief is sought have appeared in the trial court and joined the issue on the merits.
Article
In Texas Co. v. Stephens,
The burden is thus on the person claiming the unconstitutionality. Nothing is shown in this record of any facts asserted, unless we can say that the face of the statute shows its own unreasonableness.
The statute fixes a fiat fee in each case where an answer is filed, tax suits excepted, and plainly it was intended to provide revenue for the fund out of which the reporter receives his salary, which salary is fixed by law, and is independent of the amount of stenographer's fees collected by the clerk. The theory of the Legislature evidently was that in those cases where an answer is filed the court must have a stenographer on hand for the trial. Manifestly the official must be provided in advance. The court could not wait until the first witness was on the stand and then start a search for a reporter. Thus the gauge of the probability of the need of a reporter, which need manifestly must be provided for in advance, was considered by the Legislature to be the joining of issues by an answer filed. This seems to us highly reasonable. At any rate, we are not required to go further than to say, as we do, that the classification is not unreasonable. Of course, any classification may as to some individuals work more hardship than others. We all pay taxes to support public schools, and yet the man with a large family of children receives more benefit than another who is childless. But this is not any evidence that the tax is unjust. Likewise it is of no importance that in the case at bar the case never actually came to trial.
Nor are we shown any reason why tax suits should not be exempted. We doubt if we can take judicial knowledge of the stench in public nostrils caused by the thousands of tax suits which have been customarily filed without any intention to prosecute the same, but with the result that the already groaning property owner is compelled to pay attorney's fees and officers' costs attached thereto; or of the fact that less than 1 per cent. of such cases are ever set for trial, although some of us who have sat on trial benches are sadly aware of it. But the Legislature may have breathed in such an odor. At least we can say that the appellee has not discharged the burden of showing such exemption unreasonable.
The cause is reversed and remanded for further proceedings consistent with this opinion.
The motion is overruled.
State of Texas v. T. P. Ry. Co. , 106 Tex. 18 ( 1913 )
The Texas Company v. Stephens , 100 Tex. 628 ( 1907 )
Alexander v. Davis , 57 S.W.2d 354 ( 1933 )
Hutson v. Clark , 3 S.W.2d 484 ( 1928 )
M., K. T. Ry. Co. of Texas v. Milliron , 53 Tex. Civ. App. 325 ( 1909 )
Nail v. Wolfe City Nat. Bank , 158 S.W. 1166 ( 1913 )