Lukes v. Logan

4 P. 883, 66 Cal. 33, 1884 Cal. LEXIS 672

• Court: California Supreme Court
• Decided: October 21, 1884
• Docket: No. 9,375
• Status: Published

Opinion

The Court.

The return shows that a jury was duly impaneled and sworn to try the case of Lukes v. Bernheim et al., and that after the plaintiff had introduced evidence and rested, the defendants moved for a nonsuit, which was granted, and the jury was discharged by the court, which made an order that the fees of the jury be paid by the plaintiff. The plaintiff refused to comply with that order, and the court thereupon ordered that no further proceedings be allowed in the action until said fees were paid. The plaintiff prepared, and presented to the respondent for settlement, a bill of exceptions, which respondent refused to settle, on the ground that plaintiff had not paid said jury fees. Section 17 of an act entitled “ An act to regulate fees of office,” approved March 28,1868 (Stats. 1867-68,p. 436), provides: “If, in any trial in a civil case, the jury be for any cause discharged without finding a verdict, the fees of the jury shall be paid by the plaintiff, * * * and until they are paid no further proceedings shall be allowed in the case.”

If the settlement of a bill of exceptions was a proceeding in the action, respondent was clearly justified in refusing to act. We do not doubt that the settlement of a bill of exceptions is a proceeding in an action, within the meaning of the statute.

Writ dismissed.