The opinion
Walker, J.
This is a motion to docket the transcript of an appeal taken by the defendant in the case of Jake Sutton v. Charles F. Dunn, which it appears was tried in the Superior Court of Lenoir County, and in which judgment was entered for the plaintiff, Jake Sutton. The
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clerk bere refused to docket tbe transcript because, upon demand, tbe appellant, Charles F. Dunn, refused to pay tbe costs allowed for docketing. Tbe appellant contended that be was not required by tbe law to pay sueb costs to tbe clerk of tbis Court in advance.
Waiving tbe question whether tbe appellant has tendered to tbe clerk such a transcript as entitled him to have it docketed, and assuming that be has, we are of tbe opinion that tbe clerk bad tbe right to require tbe payment of tbe fee before docketing tbe same. Tbe question is not an open one, it having been settled long ago by several of tbe cases that tbe clerk is entitled to demand such payment. Tbe case of
Martin v. Chasteen,
75 N. C., 96 , is conclusively against tbe appellant.
Justice Bod-man
there said: “As is well known, tbe object of an undertaking by an appellant is not to secure tbe fees which tbe appellant may become liable for to tbe officers of tbe court pending bis appeal, but only to secure reimbursement to tbe appellee of sueb fees as be may have to pay. Tbe act puts an appellant who has complied with its conditions in tbe condition be would have been in if be bad given an undertaking. Now an appellant who has given an undertaking is not entitled to tbe gratuitous services of the officers of tbe court, but must pay for them as be procures them if tbe officers demand it.
Office v. Lockmand, 12
N. C., 146. We think tbe clerk of tbis Court bad a right to demand payment of bis fee for docketing tbe appeal before be performed tbe service, and be was not compelled to perform it gratuitously.”
And to tbe same effect is
Clerk v. Wagoner,
26 N. C., 131 , where
Chief Justice Ruffin
said: “It has been usual for tbe officers of tbe Court to indulge tbe successful party for bis costs until a return of bis execution therefor against tbe party cost. If raised on that execution, tbe officers, instead of tbe party, receive them, and thus tbe matter is settled. But it is clear that every party may be required to pay bis own costs as they are incurred, or at any time when demanded. It is incident to every court to have a jurisdiction over its suitors and officers to regulate tbe taxing and payment of tbe proper costs, and for that purpose to make rules on those persons and enforce them by attachment.” Tbe latter case was approved in
Long v. Walker,
105 N. C., 97. See, also,
Brown v. House,
116 N. C., 859 ;
Merritt v. Merritt, 2
N. C., 20;
Speller v. Speller,
119 N. C., 358 ;
Andrews v. Whisnant,
83 N. C., 446 (where tbe question is fully and clearly discussed by
Justice Dil
lard). Tbe point is further considered and decided in
Bailey v. Brown,
105 N. C., 129 ;
Ballard v. Gay,
108 N. C., 544 ;
S. v. Nash,
109 N. C., 822 .
It was held in
Ballard v. Gay, supra,
that a clerk can demand payment of bis fees in advance, and that tbis could be done under tbe statute (Tbe Code, sec. 3758; Revisal, sec. 2804), and even under tbe com
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mon law, citing West
v. Reynolds,
94 N. C., 333 , and also the other cases to which we already have referred.
But the statute, Revisal, sec. 2804, expressly provides that the clerk (and other officers therein mentioned) shall receive fees, which are prescribed for them respectively, from the persons for whom, or at whose instance, the service shall be performed, and no officer shall be compelled to perform any service unless his fee be paid or tendered.
There are exceptions to this provision, but they do not extend to this case. Revisal, sec. 1250, also provides, impliedly, the same thing. So it follows that the refusal of the appellant to pay the fee for the service when demanded deprived him of the right to have the transcript docketed, and fully justified the action of the clerk. It appears that the appellant has not entitled himself to ask any favor of the clerk (or of this Court, if it had any discretion in regard to the matter), but that his conduct has been such as to require of him a strict compliance with the law.
The clerk acted strictly within his legal right, which is clearly given by the law, and the motion therefore is denied with costs.
Motion denied.