State ex rel. Martin v. Adams

18 Ohio C.C. Dec. 643, 8 Ohio C.C. (n.s.) 513

• Court: Columbiana Circuit Court
• Decided: March 15, 1906
• Status: Published

Opinion

COOK, J.

Plaintiff in error is the probate judge of this county and he brought a suit in mandamus to compel the auditor to allow two claims; for fees which the inspector had instructed the auditor to reject and in accordance with which instruction the auditor did reject.

The common pleas court sustained a demurrer to the petition.

The first claim was for entering orders upon his journal in inquests of insanity.

devised Statutes 546 (Lan. 835) provides for the fees of probate judges in counties having 22,500 inhabitants or more, and for services of this character. The language is: “Entering order on journal, six cents; each one hundred words,” etc.

The claim of plaintiff is, that he is entitled to six cents for each one hundred words contained in the order entered upon the journal, while the claim of defendant in error is, that he is only entitled to six cents for entering the entire order, independent of its length. We are of opinion that the plaintiff is right in his contention.

Defendant relies principally on the punctuation of the statute to support his claim. It will be observed that the services performed are first mentioned, then the fee he is entitled to receive. For instance: ■“Issuing a subpoena where there is but one witness named, eight cents, and for each additional name, three cents; # *. /* entering •attendance of each witness, five cents; indexing each cause, eight cents; entering judgment on journal, eight cents; recording general verdict) eight cents; entering order on journal, six cents; each one hundred words, for .transcribing judgment or order on .the docket, eight cents. ’ ’

Clearly the semicolon is in the wrong place; likewise the comma. The semicolon should have been placed after “each one hundred words” and the comma after “six cents.”

It is true the same punctuation has been carried through the various revisions of the statute for many years. That is unimportant as it could easily arise from a clerical error. That the punctuation is wrong in this section is made clear when we turn to Rev. Stat. 1260 .(Lan. 2636), providing for the fees of clerks of court which are of the same character. “For entering an order, verdict, rule or judgment on the journal, eight cents for each hundred words;”

“Punctuation ought never to vary the true sense or the general object and the courts can disregard, or repudiate it.”

The other claim which was rejected by the auditor was for fees for certificates attached to copies of his findings and also attached to the certificate of the medical witnesses.

Revised Statutes 546 (Lan. 835), to which we have referred provides that he shall receive for “each certificate to which the seal of the court is required, and not herein provided for, thirty-five cents.” It further provides: “Making out copies of records of any proceedings in a cause, when required by either party, or the law, with a seal annexed eight cents for each hundred words.”

Revised Statutes 705 (Lan. 1176), provides:

“The probate judge, upon receiving the certificate of the medical witness, made out according to the provisions of the preceding section, shall, forthwith, apply to the superintendent of the asylum for the insane, situated in the district in which such patient resides; he shall, at the same time, transmit copies under his official seal of the certificate of the medical witness, and of his findings in the case; upon receiving the application and certificate, the superintendent shall immediately advise the probate judge whether the patient can be received, and if so, at what time.”

Revised Statute 714 (Lan. 1186), provides:

“In all cases of inquests held under the provisions of this chapter, the probate judge shall file and preserve all papers left with him, and shall make such entries upon his docket as will, together with the papers so filed, preserve a perfect record of each case tried by him.”

From these provisions it would seem that the certificate of the medical witness and his findings are part of the record in the proceeding and, as payment is provided for the same under Rev. Stat. 546 (Lan. 835), at eight cents for each one hundred words, he is not entitled to be paid for the certificate in addition to the eight cents for each one hundred words.

Judgment of common pleas court is reversed and cause remanded for further proceedings.

Laubie, J., concurs. Burrows, J., dissents from first paragraph of syllabus.