People v. Harlow, 29 Ill. 43 (1862)

April 1862 · Illinois Supreme Court

29 Ill. 43

The People, etc., on the relation of W. Don Maus, v. George H. Harlow, Clerk of the Circuit Court of Tazewell County.

application for a mandamus.

A clerk is not bound to deliver process until he is paid his fees, awarded him by law.

Clerks may insist upon the payment of their fees, as their services are performed.

This was a motion for a mandamus to George H. Harlow, clerk of Tazewell county, Illinois, to compel him to issue a writ, etc.

The petition states that the relator, on the 11th of April, 1862, the respondent being the clerk of the Circuit Court of Tazewell county, Illinois, presented a precipe for a summons against one Smith Mosher, Jr. ; that the clerk filed the precipe and docketed the suit, and made out a writ in due form of law, and then presented the relator with a bill of costs amounting to fifty cents, which the relator refused to pay; and thereupon the clerk refused to deliver the writ, or to allow the same to he taken out of his office, unless the relator would pay the bill.

The clerk admits the truth of the petition, and waives an alternative mandamus, and agrees that if he was bound,, under these circumstances, to deliver the summons, a peremptory mandamus shall issue; otherwise to be refused.

Cohrs, Maus & Roberts, for the Relator.

S. P. Bailey, for the Respondent.

Caton, C. J.

This application for a mandamus is made to compel the clerk of the Tazewell Circuit Court, to issue a summons upon a certain precipe remaining in that court. The case shows that the plaintiff in the action applied for summons, which the clerk made out, and also made out his bill for fees allowed him by law for issuing the summons,, payment of which he demanded, and without the payment of which he refused to deliver the process. And in this we have no doubt he was right. The clerk, is entitled to his fees as the services are performed. In the case of Morgan v. Griffin, 1 Gilm. 565, this court said, “ In contemplation of law, the parties respectively advance such costs as they make during the progress of the cause.” So far as we are advised, it has been uniformly held, both by the Supreme and the Circuit Courts, that clerks may insist upon their fees as their services are performed; and this we have no doubt is the law. A mandamus is refused.

Mandamus refused.