Du Boise & Bro. v. Babcock

42 Iowa 233

• Court: Supreme Court of Iowa
• Decided: December 16, 1875
• Status: Published

Opinion

Beck, J.

The original notice in this case was served by a constable and his fees therefor taxed in the bill of costs. The defendants against whom the judgment was rendered moved to retax the costs and exclude therefrom the constable’s fees for serving notice, on the ground that, as the service was not rendered by the sheriff, the fees therefor could not be taxed as costs. The Circuit- Court sustained the motion, and a proper certificate was given by the judge entitling plaintiffs to appeal from the order, which they did, and they now bring the case here. The decision of the Circuit Court is erroneous.

Code, § 2601, provides that an original notice may be served by any person not a party to the suit. Under this section the constable was authorized to serve the notice. Section 3805 provides that he is entitled to charge and receive fifty cents for serving any notice or civil process upon each person served, and for traveling fees five cents per mile. This section prescribes the compensation for the services authorized in the preceding one. The record discloses no reason why the plaintiffs should not be entitled to recover as costs the fees which the constable is authorized by law to charge and receive. Reversed.