Beach v. State ex rel. Emmons

Nebraska Supreme Court

Beach v. State ex rel. Emmons

43 N.W. 177, 27 Neb. 398, 1889 Neb. LEXIS 241

DecidedOctober 1, 1889

StatusPublished

This text of 43 N.W. 177 (Beach v. State ex rel. Emmons) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Beach v. State ex rel. Emmons, 43 N.W. 177, 27 Neb. 398, 1889 Neb. LEXIS 241 (Neb. 1889).

Pincite

Opinion

Maxwell, J.

In November, 1888, one James A. Emmons filed a complaint against Alva Pound, Joseph Mitchell, and Frank McClelland, before W. H. Snelling, Esq., a justice of the peace, charging them with assault and battery upon said Emmons. The justice thereupon issued a warrant for the arrest of said parties, and they were duly arrested. Qn the day set for the hearing the complaining witness demanded a jury, which was duly selected, and a venire was thereupon issued by said justice and delivered to the plaintiff in error, commanding him to summon the jurors so selected. This he refused to do unless his fees therefor were paid in advance. Emmons thereupon instituted proceedings in the district court to compel said plaintiff in error to summon said jury, and on the hearing a peremptory writ of mandamus was awarded. The question presented in this court is, Had the officer a right to refuse to summon the jury unless his fees were paid in advance? No case has been cited holding that he could make the payment of fees in a case like that under consideration a condition precedent to his performing his duty by summoning the jurors, and, in the absence of authorities to the contrary, we think the rules applicable in civil cases do not apply in a criminal case. It is true that in cases of misdemeanor the justice may, and where there is doubt of his solvency should, require the complaining witness to give security for costs. This security is designed for the protection of all persons entitled to costs in the case in the event that the complaint shall be dismissed; but there is no provision authorizing the officer to demand his fees in advance. The peremptory writ therefore was properly granted, and the judgment is affirmed.

. Judgment affirmed.

The other Judges concur.

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Maxwell, J.

In November, 1888, one James A. Emmons filed a complaint against Alva Pound, Joseph Mitchell, and Frank McClelland, before W. H. Snelling, Esq., a justice of the peace, charging them with assault and battery upon said Emmons. The justice thereupon issued a warrant for the arrest of said parties, and they were duly arrested. Qn the day set for the hearing the complaining witness demanded a jury, which was duly selected, and a venire was thereupon issued by said justice and delivered to the plaintiff in error, commanding him to summon the jurors so selected. This he refused to do unless his fees therefor were paid in advance. Emmons thereupon instituted proceedings in the district court to compel said plaintiff in error to summon said jury, and on the hearing a peremptory writ of mandamus was awarded. The question presented in this court is, Had the officer a right to refuse to summon the jury unless his fees were paid in advance? No case has been cited holding that he could make the payment of fees in a case like that under consideration a condition precedent to his performing his duty by summoning the jurors, and, in the absence of authorities to the contrary, we think the rules applicable in civil cases do not apply in a criminal case. It is true that in cases of misdemeanor the justice may, and where there is doubt of his solvency should, require the complaining witness to give security for costs. This security is designed for the protection of all persons entitled to costs in the case in the event that the complaint shall be dismissed; but there is no provision authorizing the officer to demand his fees in advance. The peremptory writ therefore was properly granted, and the judgment is affirmed.

. Judgment affirmed.

The other Judges concur.

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Bluebook (online)

43 N.W. 177, 27 Neb. 398, 1889 Neb. LEXIS 241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beach-v-state-ex-rel-emmons-neb-1889.