JOHN WEARNE, Respondent, v. W. J. HAYNES, Appellant
Wearne v. Haynes
JOHN WEARNE, Respondent, v. W. J. HAYNES, Appellant.
[No. 848½.]
JOHN WEARNE, Respondent, v. W. J. HAYNES, Appellant.
Costs against Garnishee nota “Tax, Impost, op. Fine. ” — An order of a justice’s court imposing costs against a garnishee that had refused to make a statement, is not a “tax, impost, assessment, or municipal fine,” within the meaning of those words as used in section 4, article vi, of the state constitution.
Appeal from tlie District Court, Sixth Judicial District, White Fine County.
W. J. Haynes, in propria persona, for Appellant.
No appearance by Respondent.
By the Court,
Leonard, J.:
On the twenty-ninth day of June, 1876, the plaintiff, John Wearne, commenced an action in the justice court of the ninth township, White Fine county, against Asa B. Eastwood, to recover one hundred and fifty-five dollars and forty-eight cents. A writ of attachment was issued and placed in the hands of James Henry, constable of said township. The plaintiff notified the constable that he had reason to believe, and did believe, that Bartholomew O'Connor, secretary of the San Jose Mining Company, and W. J. Haynes were indebted to, or had money or other property of the defendant Eastwood under their control, and requested the constable to act accordingly in the service of the writ. The constable, in his return, stated that he served the writ upon said O'Connor, who gave statement; that "he also served garnishment upon W. J. Haynes, of whom a statement was demanded, and said Haynes refused to give such statement." • On the same day plaintiff, Wearne, made and filed an affidavit with the justice, setting out the above facts, together with the further facts that the defendant Eastwood was indebted to him in the sum of one hundred and fifty-five dollars and forty-eight cents, and that he had reason to believe, and did believe, that said W. J. Haynes was indebted to the said defendant, or that said Haynes had money or other property belonging to said defendant, Eastwood, and asked the court to issue an order commanding Haynes to appear before the court, and answer concerning the same. An order was issued commanding Haynes to appear before the court on the thirtieth day of June, 1876, at ten o'clock A. m., and answer under oath as to whether or not he had any money or other property of said defendant, Asa B. Eastwood, under his control. The order was served on the defendant on the twenty-ninth of June, and he appeared at the time and place mentioned in the order. He testified that he was not indebted to defendant Eastwood, and that he had no money or other property under his control belonging to said Eastwood. Whereupon the court "ordered, decreed, and adjudged that John Wearne, plaintiff herein, do have and recover of and from W. J. Haynes, the garnishee, the. sum of eleven dollars gold coin of the United States, with interest thereon at the rate of ten per cent, per annum until paid, the costs in this action."
It is admitted that the eleven dollars mentioned were the costs of the proceedings had under section 1193, Compiled Laws, for the purpose of obtaining information respecting the amount and description of the debt alleged to be due from Haynes to defendant Eastwood.
Haynes appealed from the judgment of the justice's court to the district court of the county, where the judgment was affirmed. Haynes now appeals to this court, and claims that this court has jurisdiction under section 4, article vi, of the constitution of this state, and section 914, Compiled Laws, which provide that "the supreme court shall have appellate jurisdiction in all cases in equity, and also in all cases at law, in which is involved the title or right of possession to, or the possession of, real estate or mining claims, or the legality of any tax, impost, assessment, toll, or municipal fine, or in which the demand, exclusive of interest or the value of the property in controversy, exceeds three hundred dollars; also, in all other civil cases not included in the general subdivisions of law and equity, and also on questions of law alone, in all criminal cases in which the offense charged amounts to felony." Appellant claims that the requirement of the court that he should pay the costs of the proceedings stated, was a ' tax, impost, or municipal fine." We do not think it was either, and are satisfied that this court has no jurisdiction of the question in dispute. If this court has jurisdiction on appeal, it is certain that the district court had exclusive original jurisdiction (Secs. 4 and 6, Art. vi, Const.), and it would follow that the last part of section 1198, Compiled Laws, is a dead letter in justices' courts. If the requirement of the justice that appellant should pay the costs of special proceedings taken under the statute is a "tax, impost, assessment, or municipal fine," it must be the last. But a fine is a sum of money paid, or required to be paid by way of penalty. It is a pecuniary punishment for doing something prohibited, or failing to do something commanded to be done by law. In all legal proceedings there must be costs, and one party or both must pay them. The general requirement is that they shall fall upon the party in the wrong or in default. Injustices' courts, the plaintiff is allowed his costs, if he obtain judgment for any sum, because the defendant is in default in refusing to pay the amount found due, and an action is necessary. In the district court, in an action at law, the plaintiff is not allowed his costs if he obtain judgment for less than three hundred dollars, because, in such case, he should have brought his suit in the justices' court, where the costs would generally be less than in the district court. So the law provides that the sheriff shall make a full inventory of the property attached, and return the same with the writ. To enable him to do so, he shall request the party owing the debts or having the credit, to give him a memorandum stating the amount and description of each; and if such a memorandum be refused, he shall return the fact of refusal with his writ. The statute further provides that "the party refusing the memorandum may be required to pay the costs of any proceeding taken for the purpose of obtaining information respecting the amount and description of such debt or credit." He is required to pay the costs, not as a punish rnent, but because of liis own fault in failing to give tbe memorandum. By bis failure to comply witb the statutory requirement, be compels tbe plaintiff to institute proceedings that would not have been necessary perhaps, bad be done bis duty; and being alone in fault, tbe law requires him to pay costs that be only has made. But they are in no just sense a fine, tax, impost, or assessment, and this court has no jurisdiction. Tbe consent of parties cannot give jurisdiction to this or any other court. Having no jurisdiction over tbe matters in dispute in this proceeding, tbe merits will not be discussed, and tbe appeal is dismissed.