McHenry v. Hot Spring County

22 S.W. 175, 57 Ark. 565, 1893 Ark. LEXIS 122

• Court: Supreme Court of Arkansas
• Decided: April 29, 1893
• Status: Published

Opinion

BATTUE, J.

1 and 2. No fee is allowed a sheriff for waiting on a grand jury, and the county is chargeable with none. Cole v. White County, 32 Ark. 45; Logan County v. Trimm, ante, p. 487.

1. Sheriff not entitled to fee for waiting-on grand jury.

3. The fact that the sheriff had four warrants for the arrest of A. B. Turner did not entitle him to fees for four arrests. He could not have lawfully arrested him more than once, without setting him at liberty, or his escape, neither of which, it appears, occurred. He was not, therefore, entitled to mileage except for the miles traveled in execution of one arrest. Fanning v. State, 47 Ark. 442.

2. Mileage for serving^ several writs.

3. No mileage for making arrest without warrant.

4. He was entitled to no mileage for taking custody of Sherman Mitchell at Arkadelphia and conveying him to Malvern. The marshal of Arkadelphia, when he arrested Mitchell, should have taken him before the most convenient magistrate of Clark county, the county in which the arrest was made, and if the magistrate, from statements made to him on oath, believed there were sufficient grounds for an examination, he should, by his written order, have committed him to a peace officer to be taken before a magistrate of the county in which the offense was committed. Mansfield’s Digest, sec. 2011. The marshal did not pursue this course ; and the sheriff, having failed to observe the law, is entitled to no fee from the county for services in violation of it.

5. Por arresting' Spice Hill without a warrant the sheriff is entitled to no fee from the county for mileage, because the statute allows none, except for miles traveled “in serving each writ, process, notice, subpoena or rule, except county matters.” The sheriff displayed commendable zeal in arresting' him, but that alone does not make the county liable for the fee charged. See authorities cited above.

Judgement affirmed.

Note.—Where a sheriff had for service upon one person seven subpoenas in as many State cases, and he made but one trip in serving them all, held that he was entitled to mileage for one trip only. Redfield v. Shelby County, 64 Ia. 11. A marshal cannot charge mileage for each of several subpoenas served for the same party upon different persons at the same time and place. Turner v. United States, 19 Court of Claims, 629. Contra, under Gen. St. Col. sec. 1441, allowing officers 15 cents for each mile “necessarily” traveled in serving process in criminal cases, a sheriff who serves process issued in different criminal cases at the same time and place is held entitled to mileage in each case for the entire distance. Board of County Com’rs. v. Love, 25 Pac. Rep. (Col.), 557. Where a sheriff at the same time and place posts notices of two elections, he is entitled to mileage for only one trip. Logan County v. Doan, 51 N. W. Rep. (Neb.), 598.

In civil cases, it is held that where a plaintiff brings a number of separate suits before a justice of the peace against different defendants, and recovers judgment therein, the constable who served the. writs is entitled to demand from the plaintiff, in addition to his fees for service, his mileage in each case. The fact that several or all of the defendants lived in the same locality, and that the constable did not make a separate trip to serve each one, is immaterial. McGee v. Dillon, 103 Pa. St. 433. To same effect, see Gulf, etc. R. Co. v. Dawson, 69 Tex. 519. (Rep.)