(Clinton County Common Pleas, July,

1900)

#### JOHN C. MARTIN v. CLINTON COUNTY.

1. *Costs recoverable by defendant in criminal*case—

A defendant in a criminal case, convicted in the common pleas, and afterwards awarded a new trial or error in the circuit court, op which new trial he was acquitted, is entitled to recover from the county, as costs, the fees paid by him to the official stenographer, for making a transcript of the testimony taken on the first trial, to be used in a bill of exceptions, as ordered by the court, and requested by his counsel during the first trial, but which transcript was not completed until after *391the trial an * the 'overruling of a motion for a new trial.

Brown, J.

This matter comes before the court upon an appeal from the county commissioners under sec. 696, Revised Statutes, and was heard upon the testimony and was argued by counsel fully, both orally and by brief.

The testimony shows that John C. Martin was on trial at the January term, 1898, of the court of common pleas of Clinton county, Uhio, under an indictment found by the grand jury of that county.

The journal shows: that on January 24 an official stenographer was appointed to report the testimony in the case; on February 23, on application of the state and of the defendant, the official stenographer was directed to make such transcripts which are ordered by the counsel or court; on February 28, that Mact. J. Day was appointed additional and assistant official stenographer in the case,, he was duly sworn and entered upon his duties.

It further appears from the testimony that the stenographer was unable to transcribe between the sessions of court all the testimony which had been taken during the trial, although it appears clearly that the stenographer was ordered to make complete transcripts -of all the testimony by counsel for the defendant, and only about one-fourth in amount of the testimony was actually transcribed before the verdict, which was guilty on one of the charges included in the indictment.

After the motion for a new trial was overruled, the time was very short within which to prepare a bill of exceptions with a complete transcript of the testimony. The stenographer declined to make this transcript upon the request of the defendant and his counsel until he was paid for the same, and stated that he desired no controversy with the commissioners with regard to hi,s fees as it would be necessary for him to employ a number of assistants, but that he would give the necessary receipts which would entitle him to recover the amount back from the county commissioners.

The original cost bill in the circuit court shows that the costs of the defendant including this transcript, which is marked “paid by the plaintiff in error” is $744.41. The journal of the circuit court of March 30, 1899, shows that the judgment of the common pleas court was reversed and a new trial awarded to the plaintiff in error “and that he be restored to all things he has lost by such erroneous conviction and he recover of this defendant, in error his costs herein expended taxed at $ — .”

A change of venue was then had in this case to Greene county and a certified copy off that court dated March 13, igoo, shows that the defendant John C. Martin was found not guilty under that indictment.

Mr. Martin presented a bill for the amount! actually expended by 'him for the transcriptr made by the stenographer $675.00 and the clerk's transcript of entries $38.25, total* $7I3-25, which was unanimously rejected by the board of county commissioners and an. appeal was taken to this court as heretofore: stated.

Section 1318, Revised Statutes, provides; that in all actions, motions and proceedings in any of the courts of this state, the costs of the parties shall be taxed and entered of record separately, and section 1319 provides that on-rendition of a judgment in any case, the costs-of the party recovering * * * shall be carried! into the judgment. And section 1322 provides that in all cases taken from the court of common pleas to the circuit court on error or appeal * ® * the clerk shall certify in the-mandate of execution the costs of ‘•be losing party.

These sections apply to both civil and criminal suits and this is the practice in our courts.. The amounts paid for these transcripts were-first paid to officers of the court whose compensation is fixed by law and was properly-taxed in the costs and was recovered by the-judgment of the circuit court.

Section 478, Revised Statutes, provides for the appointment of stenographers and the payment of their fees, and the court, in making-the apponitmer. in this case, followed the statute closely. Section 479 provides that when* shorthand notes have been taken in any cause, if the court or either party to the suit or his; attorney requests a transcript of these notes, the official stenographer shall make full and' accurate transcripts, which shall be filed by the clerk of the court for. the use of the court or parties.

Section 480, Revised Statutes, provides that-the fees for such transcripts shall be eight cents per folio of one hundred words and shall be paid forthwith by the party or parties for whose benefit the same was ordered and when paid shall be taxed as other costs in the case; but all transcripts made in criminal cases * * * shall be paid out of the county treasury in the-manner provided for the payment of fees for-taking shorthand notes, evidently referring-to section 478.

I am in some doubt as to whether the order of court in the journal entry which ordered’ that the stenographer should make such transcripts ordered by the counsel or court, would* be sufficient to coyer transcripts not actually-*392made during the trial or transcripts ordered by counsel after the trial, but I am inclined to the opinion that transcripts of the testimony under the order similar to that made in this case and completed for counsel after trial, ought to be paid by the county, and in this case it was clearly a necessary part of the costs and could have been recovered by the stenographer, had it not been advanced by the defendant for the transcript for the testimony to make the bill of exceptions, and was properly taxed in the costs, and paid by the defendant in order to get his case into the circuit court. All costs are supposed to be actually advanced and paid at the time the costs are incurred and the court and the law so treat these costs although this is not the actual practice, and upon a reversal of the case, whether criminal or civil, the plaintiff in error is entitled to recover his costs expended, as was done in this case.

Thorpe *&*Miller, for county.

Major Hayes, for plaintiff.

In McCourt v. Commissioners, Hamilton Co., which is reported in the 5 Court Index, 14, is a case in which John McCourt had paid $675.00 to the official stenographer for a transcript of the testimony in a criminal case, No. 11921, in which McCourt had been convicted was reversed by the circuit court, case No. 2028, circuit court of Hamilton county. Judge Moses Wilson held upon a similar proceeding in an appeal from the board of county commissioners made by McCourt to the court of common pleas, that McCourt was entitled to recover and the auditor of the county was directed to issue 'his warrant upon the treasury of the county for the amount. And the practice has been followed by the courts of Hamilton county since then.

It therefore becomes the duty of this court to reverse the action of the county commissioners and direct that the auditor of Clinton county draw his warrant upon the treasury of said county for said amount of $713.25.