The record-union., 1899-07-01


| papers, coupled with a request that a
writ of attachment may issue, imposes
no obligation upon the Clerk, unless
the request is accompanied with pre-
sent tender of fees; while in the under
standing Of the appellant, the obliga-
ton of the Clerk is perfect without
| tender, if prepa yment is not demanded.
THE controlling words are may re-
| fuse. The Intention was not to pro.
hibit the Clerk, in a matter of mere
personal concern, from rendering OH
cial aid on credit. The word may, in
| the connection in which it stands, is not
! to be construed as mandatory TO tue
Clerk, but permissive, leaving the al
| tentative of cash or credit to his own
election. Again, the word refuse Is
used in contradistinction to silence, or
mere omission, or neglect. The d1stlnc-
| ton is one lying between action on the
one hand and non-action on the other.
1 If the Clerk in view of the alterha-
/ tives presented to him, makes up his
mind to stand upon prepayment, the
mental state is not in itself refusal
| of credit. The conclusion of the mind
antedates the REFUSAL and leads to it.;
| but it is neither identical with it nor
| is it any part of it. It is only in the
event of an announced refusal of credit
that the applicant, under the adjust
ments Of the section, is required to
| tender To hold that the silence of the
Clerk is an equivalent antecedent to
| the duty to tender, would be to inter-
polate into the section new and sub
Estantive provision. The section, In
| short, confers upon the Clerk per-
sonal privilege, which he may claim or
! waive as he chooses. If he claims it,
| he should announce it.; and if he does
i not SO announce, he must be under
stood to have waived it. The statute
| nowhere provides that the Clerk shall
not be obliged to move until his fees,
whether asked for or not, have been
rendered Doubtless, under provision
| like that, the role of the Clerk would
be a passive one altogether. But under
the law as it stands, after application
for process has been made in due form,
something is to be done before any ex-
hibition Of money is contemplated. The
character of the initial Act is clearly
defined, and the function of performing
it is clearly devolved upon the Clerk. :
| This case is sustained by the case of
Co., 81 CAL, 506.
| do not see that any distinction can
be drawn between these cases and the
one at bar, because Of the fact in these
| cases the Clerk was entitled to the fees
as his compensation, and in this the
! fees go to the State. Here the officer
can collect in advance If he chooses,
or he can wait upon the person; as said
| before he, not the State, takes the
chances of non-payment. 1t was his
duty, If he had any fear about the re-
| suit, to have demanded the fees either
when the demand was filed or before
| he issued the order Of reference. He
never made any demand, and as was
said in Lick VS. Madden, supra, "If he
claims it he should have announced it,
| and if he does not so announce he must
| be understood to have waived it"
Never having claimed the fee, or de-
manded it, in Ibis matter, the Regis
ter should have obeyed the law as inn
posed upon him in Section 344, P. c.,
and have certified the case to court.
Since writing the above, in a sup
Elementary brief my attention has been
called to the case of Davis VS.. Hurgren,
ct al, decided by our Supreme Court in
an opinion filed. June Is, 1899. This
was an appeal from an order Of the
Superior Court of Sonoma County, de-
| nying plaintiffs motion for new trial.
An examination of the record in the
case shows that the facts were as fol-
lows:
On February II. 1897, verdict was
rendered for defendants. Plaintiffs at
torneys mailed a notice of intention to
move for a new trial at Petaluma on
February Goth. and the same was re-
ceived by the clerk of the court at
Santa Rosa, on February %, 1897 (the
21st was a, Sunday and the 22d was
Washington's birthday. The clerk did
not file the notice on the Odd because
the fee for filing had not been paid.
Three days afterward plaintiffs at
torneys visited Santa Rosa and paid the
fee for filing, and, at their request, the
clerk indorsed the notice as filed on
February 23d
The Superior Court denied the motion
for a new trial on the ground that the
notice had not been filed in time
This order was affirmed by the SUI
preme Court, and, in affirming it, that
court said:
Section $50 of the Code of Civil Pro-
cedure provides that a party intending
Isto move for new trial must within
ten days after the verdict of the jury,
file with the clerk his notice of inten-
ton. In the case at bar, the ten days
expired on the 23d of February. On
that day, the appellants sent their no.
tice of intention to the clerk, but the
clerk did not file the same because the
fee therefor was not paid, and three
days afterward, at the request of the
appetla hts, who then paid the fee, the
clerk indorsed it as filed February 23d.
The Act of March %, 1895 Statutes of
1895, page 267 ct seq.), provides that on
the filing of a notice of a motion for
a new trial the parties filing. the same
must pay to the clerk a fee of So, and
that county officers must
demand the payment of all fees in civil
cases in advance @. 272). The notice,
therefore, was not filed in time. The
mere fact that the clerk received it on
the 23d did not constitute a filing; it
was not his duty to file it without the
fee He did not file it, and he could
not have been compelled to file it on
that. day."
Section / of the Act of March %,
1895, provides that the county officers
mentioned therein shall charge and
collect" the fees therein specified, and
that county officers must de-
mand the payment of all fees in civil
cases in advance"
It will be observed that in that case
the statute expressly provides that ION
filing Of the motion for a new trial the
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