Omaha daily bee., 1908-07-12
COURT FEES IN ADVANCE
Supreme Court Decision Of Vast
Importance to Litigants.
MAY AFFECT REAL ESTATE
judgments Unrecorded Because Fees
Are Not Paid May Crop I'D
Years After TO CIoud
Titles.

~ HANNN " NANuN
TITLES.
One Of the most sweeping decisions ever
rendered by the supreme court Of the state
was that recently handed down in the case
appealed by Robert Smith, clerk OF the dis
trict court, against a rule OF the district
court Of Douglas county which made 1t the
duty of the clerk of the district court to
record and enter orders of the court regard
less Of the payment Of fees by parties in
terested in the cases in which the orders
were made.
BY the decision OF the supreme court the
rule as laid down by the local district
Judges was overruled, the higher court
holding that the clerk should receive fees
before the orders were entered upon the
records Of the court.
ITO those not familiar with the previous
practice at the local bar this order would
be Of little apparent Importance since the
theory is that all costs, having to be paid
at some time, might as we'll be paid in adj
vance as at the end of the trial and the
determination Of the case; but in practice
this is not the case, and the new rule. in
the opinion of those familiar with the stu
alton, will have great effect upon litiga-
ton.
Until comparatively recently the office of
the clerk Of the district court was a zee
office" that is, the clerk received all of
the fees earned by the office and out Of
that paid certain expenses Of the office,
the balance being his perquisites. AS long
as the clerk received all of the surplus
funds he was the only person interested in
the earnings and collections, and he alone
fixed the system of accounting as far as the
public was concerned. Long time and easy
credit was the rule. Attorneys knew that
court costs were a sort Of obligation which
would not be pressed too closely and they
did not hesitate to brings suits as long as
their fees were secured. An inspection Of
the old records in the court house will show
that not more than 60 per cent of the cases
brought were ever prosecuted to trial. and
that in many instances cases were tried
and judgments rendered without the pay
ment of a single dollar by any party to the
suit. These earned. but Unpaid, fees then
became a question of debt between the clerk
and the litigants. II the clerk could not
collect the fees no one but himself was the
loser and in those days the clerk was leni-
ent. since even the entire collectable fees
OF the office made II one of the best pay
ing places in the state.
Clerk on salary Basis.
Then the law was changed so the clerk
was placed on a salary and was COM
PEELED to account to the county for all
fees earned in excess of the amount legally
necessary to pay the expenses of the
office. Then the public acquired an in
terest In the fees OF the office, and the
accounting department of the county took
a hand In the matter of costs of suits and
their collection. Even after the passage of
the new law there was an impression that
the clerk or the district court had a right
10 conduct the office to suit himself and
that the county only had a right to receive
the excess of the fees collected over the
expenses of the office. and while an i'm
portant phase of this proposition is vet
to be determined by the supreme court. II
has been decided that the clerk must
account to the county for all fees earned
by MIN and 1t may be held that the clerk
is an insurer of the fees, and not simply
a collecting agent. II this rule is finally
established the reason for the decision
recently handed down is apparent. since
under the old system the clerk might not
only be required to do the work, but be
| compelled to pay for the work he has
done If l~itisants do not pay their bills
before the time required by law for an
accounting.
HNNN' 'Ht lult VI payment In advance OF
fees was made. there Is a tendency on the
part of litigants to hesitate about bringing
actions, and there is every indication that
in future the actions will all possess some
degree of merit and that spite lawsuits
viii be practically a thing OF the mast
undoubtedly there is at present a Rreat
talllng OFT in litigation. In the DAYS wher
FRANK f.. Moores was clerk, particularly
in his first term fifteen to twenty case,
> a day during the early days Of the term,
was no unusual thing, and the averas,
would be nearly three times as many a,
the average number Of cases filed sine,
the beginning Of the present year.
New Rule Decreases Litigation.
1t must not be understood that the "pay
as you 60 rule is responsible for the entir,
decrease. Perhaps the most Important
reason for this decrease Is the operation
of the scGvengor law. Before that law wa,
invoked by Douglas county the purchase OF
=. tax certificates was a well established
a business. After a term of years the hold
1 ers or these tax certificates would go int
. court to secure a foreclosure of their certifi
. Gates, and some of the dockets which wer,
I'm use In the latter part Of the SOS showed
that at that time 10 per cent of the case
would be Of this nature. In such case
there was no question Of collection Of fee
: since the foreclosure DEGREES all provid,
! that the first money to be taken from tina
-, received at the sale shall go to pay cost
and the judgment creditor Is only ~sstisfie,
after the court officers have had thei
share. For this reason these suits wer
not only large in number, but were tn
cause OF the large amount of fees. Wher
a defendant knew that il he should los
; the case the costs made by him must b
= taken from money which would otherwis
m go to the holder OF the tax certificate Oh
his land, the desire to prolong litigation
was overpOweriLg, and dilatory pleas wer
the rule, all such pleas increasing the worI
and revenue Of the district clerks office.
The greater part OF this revenue passeu
" with the operation OF the scavenger law
which is clearing up the taxes and titles t
is about $1,000 pieces OF land in one suit.
T. Mortgage Litigation il Important.
n With the tax title suits out OF the wa
d the greatest source OF certain revenue wer
the suits based on mortgages Of real estat,
The prevailing prosperity Of the last eigh
y or ten years has greatly reduced the rum
Der and importance of these suits. As /
N the tax suits the costs OF the l~itigatio