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of the papers in probate proceedings above mentioned shall be filed therein until such payment is made. Such clerk shall also at the time of filing any answer, demurrer, or motion in any such action, suit, or proceeding upon the part of such defendant, exact from such defendant the sum of five dollars in all cases where the amount in controversy exceeds the sum of five hundred dollars, and two dollars and fifty cents in all cases where the amount in controversy is five hundred dollars or less, except in probate proceedings, where the party filing such demurrer, answer, motion, or objection shall in all cases be required to pay the sum of three dollars, and such paper shall not be deemed filed unless such payment is made; and such clerks shall also exact from such plaintiff or moving party at the time such suit, action, or proceeding when contest comes on for final trial or hearing upon a question of fact and law involved therein, unless referred to a referee, or on demurrer or motion, an additional sum of two dollars, which shall be paid before any such trial shall be had therein. [L. 1895, p. 82, § 8; L. 1899, p. 151.]

See § 3017, et seq., post, (L. 1901, p. 387,) establishing fees in counties of more than fifty thousand inhabitants, the effect of which is to establish a special table of fees for Multnomah County, and see also § 2976

as amended, (L. 1901, p. 135,) by which the coroner when acting as sheriff is allowed the same fees as sheriff, except in Multnomah County where a salary is provided in lieu of all fees.

$ 1088. Fees Paid Under Preceding Section are in Lieu of Trial and Other Fees Heretofore Collected.

The several sums required to be paid by the parties litigant to the clerk of the circuit or county courts in appeals, actions, suits, and proceedings as provided for in the two preceding sections of this act, are to be in lieu of all the fees such parties have heretofore been required to pay to clerks, sheriffs and all other officials in such matters, and the trial fee provided for in the preceding section of this act shall be in lieu of the trial fee such parties were, prior to the adoption of this act, required by law to pay, and no such fees or trial fee last referred to, or any other fee, shall hereinafter be exacted from the parties to any suit, action, or proceeding. [L. 1895, p. 82, § 9.]

The requirement that the plaintiff in every divorce suit shall pay a stated fee to the district attorney is not affected by this and the preceding section relating to the fees of certain named officers, for neither the district attorney, his fees, nor

his duties are referred to therein: State
ex rel. v. Moore, 37 Or. 541, 62 Pac. 26.
This decision, however, applies only to
Multnomah County: Howard v. Clatsop
County, 41 Or.
68 Pac. 426.

§ 1089. Clerk to Receipt and Account for Fees Collected.

The clerk of the county or circuit courts shall receive and receipt for said sums, stating in said receipt the amount so received, from whom received and on what account said sums were received, specifying the cause or proceeding; and if it be ascertained at any time that such official has received any money for such fees not so accounted for, or done service without exacting fees therefor as above mentioned, or neglected his duty in any other respect, the payment of his salary shall be withheld until the matter is fully rectified. [L. 1895, p. 83, § 10.]

§ 1090. Trial Fee Recovered as a Disbursement, When.

The trial fee is to be paid by the plaintiff, appellant, or moving party,

before he is entitled to or can claim the trial or other proceeding upon which such fee is imposed, and if the party paying such fee prevail in the action, suit, or proceeding, so as to be entitled to recover costs therein, such fee shall be allowed and taxed as a disbursement, and collected off the adverse party. [L. 1862 ; D. Cd. § 1033; H. C. § 1065.]

The provision that the moving party moving party. whether plaintiff or defendmust pay the trial fee before he is entitled ant, must pay the trial fee; but on appeal to a trial is not repugnant to the provision the appellant is in all cases required to of the constitution that justice shall be advance the fee. If he fail to do so the administered without purchase. Nor does court may dismiss the appeal and affirm it violate the right of trial by jury, within the judgment from which the appeal was the meaning of the constitutional restric- taken: Bailey v. Frush, 5 Or. 136. tion upon that subject: Bailey v. Frush, 5 Or. 136.

In a court of original jurisdiction the

When a party is unable to advance the trial fee, he need not do so to maintain the action or suit: Bailey v. Frush, 5 Or. 136.

$ 1091. State or County Need not Pay Trial Fee.

When the state or any county therein is a party to a judicial proceeding, it need not pay the trial fee in advance, and if it be entitled to recover costs therein, such fee shall be allowed and taxed in its favor as a disbursement, and collected off the adverse party as in ordinary cases. [L. 1862; D. Cd. § 1034; H. C. § 1066.]

§ 1092. In Justice's Court, when and to whom Paid.

The trial fee in a justice's court shall be paid to the justice upon the demand for a jury, and unless so paid, the demand shall be disregarded, and the trial proceed as if no such demand had been made, except when a party is prosecuted in a criminal action at the suit of the state, in which case the party is entitled to a jury trial without the prepayment of such fee; and if judgment be given against him, the fee shall be allowed and taxed in favor of the state as other disbursements in ordinary cases. [L. 1862; D. Cd. § 1035; H. C. § 1067.]

§ 1093. When Party too Poor to Pay Trial Fee, May Proceed Without It.

If at any time it appear to the satisfaction of the court or judge thereof, from the affidavit of the party or other evidence, that he can not pay the trial fee, such court or judge may direct that he be allowed to proceed without the prepayment thereof; but if such party prevail so as to be entitled to collect such fee, as a disbursement, off the adverse party, when collected it shall be retained by the clerk as if paid in advance. [L. 1862; D. Cd. § 1037; H. C. § 1069.]

1094. Trial Fee to be Paid Clerk-How Accounted For.

The trial fees shall be paid to the clerk of the court, who shall keep a regular account of them, and by whom paid, in his fee book, and pay the amount of such fees received to the treasurer of the county, as often as once a month, taking his receipt therefor in duplicate, one of which such clerk shall file in his office, and the other he may retain as his private property. At the annual accounting of the county officers with the county court, the clerk shall exhibit to such court a detailed statement of the trial fees received

by him in the course of the year, verified by his own oath. [L. 1862; D. Cd. $1038; H. C. § 1070.]

$ 1095. Trial Fee in Supreme Court, how Disposed Of.

The trial fees in the supreme court shall be paid, deposited, and accounted for as provided in the last section, except that they shall be paid by the clerk to the treasurer of the state, and that the verified statement of the clerk shall be made to the secretary of state on or before the first Monday in September, for the year preceding. [L. 1862; D. Cd. § 1039; H. C.

§ 1071.]

$1096. Trial Fee to be Paid Jury by Justice.

In justice's court, the trial fee is paid to the justice. He shall keep an account of them, and by whom paid, and distribute the amount among the jury in the particular case, in payment of their legal fees. [L. 1862; D. Cd. § 1040; H. C. § 1072.]

$ 1097. Fee of District Attorney.

The district attorney, in addition to the salary and per diem allowed him by law, shall receive the following fees:

1. In a criminal action when the punishment is death or imprisonment for life, if the defendant is convicted, twenty-five dollars, or if acquitted, one half thereof;

2. In a criminal action when the punishment is imprisonment in the penitentiary for a term of years, if the defendant is convicted, fifteen dollars, or if acquitted, one half thereof;

3. In a criminal action for a misdemeanor, if the defendant is convicted, ten dollars, or if acquitted, one half thereof;

4. In a civil action for the recovery of any fine, penalty, or forfeiture, ten per centum on the amount actually collected;

5. For prosecuting or defending any other civil action, suit, or proceeding not herein mentioned, to which the state or any county in his district is a party, twenty-five dollars;

6. For actually defending, on behalf of the state, a suit for the dissolution of the marriage contract, or to declare the same void, ten dollars;

7. For prosecuting or defending any action, suit, or proceeding, herein mentioned, or appeal to the supreme court, twenty dollars. [L. 1862; D. Cd. § 1041; L. 1878, p. 97; H. C. § 1073.]

The requirement of this section that the plaintiff in every divorce suit shall pay a stated fee to the district attorney is not affected by the acts of 1895 and 1899 relating to changes in fees of certain named officers, for neither the district attorney, nor his fee, nor his duties are referred to therein. Nor was it repealed by implication by the act of 1898, placing the district attorney on a salary and providing that certain fees, percentages, commissions, and charges then established by law, or in any manner allowed for the performance of any act or duty required of the attorney,

except services rendered for or on behalf of the state or for or on behalf of Multnomah County, for which no charge should be made. should continue and remain established fees, and providing that the officers should collect from the person for whom services should be rendered, as the exception in the act of 1898 as to services on behalf of the state was intended to apply to instances in which the district attorney had theretofore been authorized to charge and collect from the state, and not to cases where his fees were to be collected from private parties for whom the

services were rendered, or who might have
been charged with the payment thereof:
State ex rel. v. Moore, 37 Or. 536, 62 Pac.
26. This section, and the decision in State
ex rel. v. Moore, supra, applies only to
Multnomah County: Howard v. Clatsop
County, 41 Or.
68 Pac. 426.

The Oregon cases applying to the compensation due from the state to the district attorney will not be noted here, as the law in that regard has been changed by the acts placing the district attorney upon a salary.

$ 1098. Plaintiff in Divorce Suit must Deposit Ten Dollars Before Complaint Filed.

The fees provided for in the last section shall be paid to the district attorney by the county where the services are rendered, excepting the fees in the prosecution or defense of a civil action, suit, or proceeding to which the state is a party, and in divorce suits. At each term of the court, the court shall ascertain the fees to which the district attorney is entitled for the term, and direct an order to be entered upon the journal that the same be paid. Upon presentation of a certified copy of such order to the proper officer of the state or county, it shall be his duty to draw his warrant upon the treasurer of the state or county for amount therein specified, excepting his fees in divorce suits. It is hereby made the duty of the plaintiff in every divorce suit to deposit with the clerk of the court in which the suit is instituted, before the complaint is filed, the sum of ten dollars, which sum shall be paid to the district attorney by the clerk as his fee in such suit, when his fee therein is allowed by the court as aforesaid; and if the plaintiff prevail in such suit, he or she shall be allowed such sum of ten dollars as a disbursement against the defendant. The clerk shall not receive or file the complaint in any suit for divorce until such fee be deposited. [L. 1864; D. Cd. § 1042; L. 1878, p. 98; H. C. § 1074.]

See note to § 1097.

§ 1099. Fees of District Attorney in Civil and Criminal Actions; how Taxed.

In a criminal action, if the defendant is convicted, the clerk shall allow and tax in favor of the county the amount of the district attorney fee in the action, which shall be collected off the defendant. Such fees shall be paid by the clerk to the treasurer of the county, and accounted for in the same manner as trial fees. In an action, suit, or proceeding, other than a criminal action, the fee of the district attorney is not taxed as a disbursement, but the county that is liable to pay such fee is entitled to costs off the adverse party, as in ordinary cases. Such costs, when collected, shall be paid by the clerk to the treasurer of the county, and accounted for in the same manner as trial fees. Fees earned in the supreme court are to be paid by the county from whence the appeal was taken, upon the order of the court, as in the courts below, and when collected are disposed of in the same manner. D. Cd. §§ 1043, 1044; H. C. §§ 1075, 1076.]

See note to § 1097.

[L. 1862;

TITLE XVI.

OF PROCEEDINGS IN THE ADMINISTRATION OF ESTATES.

CHAPTER I.

OF GENERAL PROVISIONS

II.

OF THE PRODUCTION AND PROOF OF WILLS, AND THE
APPOINTMENT OF EXECUTORS AND ADMINISTRA-

1100

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IV.

OF THE SUPPORT OF THE WIDOW AND MINOR CHILDREN 1153

V. OF CLAIMS AGAINST THE ESTATE .

1158

VI. OF THE SALE OF PROPERTY BY EXECUTORS OR AD

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$1100. Forms of Pleadings in Probate Proceedings - Nature of Proceeding — Powers of Court, How Exercised.

There are no particular pleadings or forms thereof in the county court, when exercising the jurisdiction of probate matters, as specified in section 911, other than as provided in this title. The mode of proceeding is in the nature of that in a suit in equity as distinguished from an action at law. The proceedings are in writing, and are had upon the application of a party or the order of the court. The court exercises its powers by means of— 1. A citation to the party;

2. An affidavit or the verified petition or statement of a party;

3. A subpoena to a witness;

4. Orders and decrees;

5. An execution or warrant to enforce them. [L. 1862; D. Cd. §§ 1045, 1046; H. C. §§ 1077, 1078.]

As to jurisdiction of county court as a ment at law as distinguished from a suit, court of probate, see § 911, ante.

Proceedings under § 1161, post, to determine a disputed claim and an order in regard thereto, are in the nature of a judg

and is to be treated so in proceedings upon appeal: Johnson v. Schofner, 23 Or. 111; Wilkes v. Cornelius, 21 Or. 341, 28 Pac. 135.

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