Denny v. Holloway

The opinion of the court was delivered by

Reavis, J.

The respondent Denny as guardian of the estate of Magle, an insane man, presented to the appellant Holloway, who is clerk of the superior court of King county, his final report and account as such guardian for filing, preparatory to requesting an order of court fixing the time and prescribing notice for the hearing and settlement of the account, and therewith tendered to appelant as such clerk all the fees prescribed by law for filing the account and report and all the papers connected therewith, but refused to pay upon demand of the clerk fifteen cents per folio as fee for an examination to be made by the clerk of the report and account. Appellant refused to file the account and report and papers connected therewith on the ground that it was his duty as clerk to make such examination and to collect the fee therefor as public revenue accruing to the county. There was no order of the superior court requiring the clerk to make an examination of the account and report. Respondent then filed his affidavit and moved for a writ of mandamus to. compel the clerk of the court to forthwith file the account and report or show cause why he did not file the same. The appellant appeared by the prosecuting attorney and demurred to the affidavit and order to show cause on the ground that they were insufficient to justify a peremptory writ. On hearing, the court overruled the demurrer and entered a peremptory order directing the appellant as clerk to file a final account and report, from which peremptory order this appeal is taken by the clerk.

The question involved is whether appellant as clerk is authorized of his own motion, against the objection of respondent, to require respondent to submit a report and account to the clerk’s examination, and to pay fifteen cents per folio as a fee therefor in addition to the other fees prescribed by law for the filing of the papers. Appellant rests his contention entirely upon the statute (Section 1, Fee Bill, Statutes 1893, p. 421, under division “ Clerks of the superior court,” subd. 21), which provides as a fee “ for examining accounts, .counting each two figures as one word, per folio 15c.,” and argues that under section 1299 of the Code of 1881 it was the duty of the probate judge in the settlement and allowance of accounts of executors, administrators and guardians, to allow or reject claims against the estate of the deceased or insane person. Under section 2086, Code 1881, division “Judge of Probate Court,” the judge of said court was allowed for examining accounts, each one hundred words, counting two (2) figures for a word, 25c., which said judge collected as a fee for his own use. But the jurisdiction of all proceedings in probate and all tbe business of the probate court -was by tbe constitution vested in tbe superior court. Tbe law of 1891 (vol. 2, Hill’s Code, § 845) imposed tbe duties of settling tbe estates of deceased persons and tbe accounts of executors, administrators and guardians and tbe allowance or rejection of claims against tbeir estates on tbe judge of tbe superior court. All tbe records of tbe pro-' bate court are by Laws 1891, § 2, p. 380, kept by tbe clerk of tbe superior court, and tbe fees allowed under tbe probate act are collected by bim. Tbe clerk of tbe superior court is a mere ministerial officer and is not authorized to make any examination of sucb an account and report as was filed by respondent. Tbe examination and settlement of tbe account is vested in tbe judge of tbe superior court.

"We do not tbink tbe clerk is authorized to collect any fee for examination of tbe report and account, and tbe judgment of tbe superior court is affirmed.

Scott, C. J., and Dunbar and Anders, J J., concur.