Untitled Texas Attorney General Opinion ( 1939 )

283
OFFICE OFTHEATTORNEYGENERALOFTEXAS
AUSTIN
Honorable Vi. B. Baker
collnty AttoPney
Coleman County
Coleman, Texas
Dear Sir:
Your request r
this mparfmint. we
or this cotwp,
le 2089 0r the
ct *the plain-
thedocket
rendanthas
t 0r all ooets that
I desire to kaor whether
after axing wait and
PS, in vaotican, by en-
dooket, in eabetance;-ikw 001088
by Attoxne;la and %ismisa this ease
ter paying all oosta or suit in-
ned by plaintiwe Attorneys uith-
the clerk a dollar for the aat or
or aat 0r di~miseing, the saee
08 aAd where the dsfendant has XL& an-
swered.
-Our Dlatrlot Clerk has oonatrued that Arti-
cle to man that ahe is entitled, pador the
above eircumstanaes, to oharge a dollar the same
aa if the oaae had been dismissed in Court and.
m&deed judgaant enterad j~as$llka during
.
Sionorable w. B. Raker, Page 2
"It I8 4 oontentlon that where It Is dls-
mlassd, or dlsaontinued, In vacation, under the
above taots, that the Clerk rould not be entitled
to charge anything for the dIsmIesal.w
16 'Per. JUri8.,dismissal, dlsaontlnuancre and
non-5ult, Sect105 8, pp. 242, 2c3, reads as r0il0~:
*iIa. 15 Vaoatlon.
"*The plaiatirr may enter a dieoontInua5oe
on the doaket I5 vacation, I5 any auIt wherei
the dere5da5t has not answered, OIL the payment
Or all oOutB that hare aoorued thereo5.*
9hIestat&e, whioh has be05 in Orrmt
with 50dirioation ai50e rery early tIma,
little
give6 to the flaintirr, apon payment 0r 008t6,
an unqualltied right, If the defendant haa not
answered, to dlumlss the auft, dthoat a4 au-
tion or the judge. Ho ordek or uoart Is aeuea-
==Y* when aamuwer has been tiled the uuit
may not be dIsaIssed In taoatlon, ~YM by entry
on the dooket aI46 paylrmnt 0r coats.
*Aa we hare seen in a5 earlier artlale,
the entry of a displiseal by an attorney Is pre-
sumd to ba authorized. The fOllo\ring entry
ha8 thererore been held t0 be mrriaient ah
th0ugh the statute atatea that the *pm5tirr
ma)- enter a discontlnaanae on the docket*z
**05the ~_ day or ~~ ~~~~~
, in vacation,
the defendants- * noFEi?ia ,g answered hers-
I5, the plaI5tIm I- enter thie their dIseon-
tlnuancrs and dlamls~ Tor thiii Bait; all metrr
that have aoorued having been paid by plaintilirr.
Attye. ror Plaintirrs*~
Article 3927, Revised Cirll Statutes Or Teza8,
lists the fee8 to uhlch district Olerks are eptItled.i.0
Peoeirs In cirI1 wits. 'There Is 50 rse listed I.5 thle
Artlole ror a disniseal, or dlsaO5tfnuanco u5deF AZ%iQle
2CSQ; rq are mable to find a4uheme a4 author%7 whlah
i’
Honorable w. B. Baker, page S
would authorize the dietrict clerk to charge a fee under
Article 2089. We find in Artiale 5927 that the clerk ia
entitled to one Dollar ror e&oh rinal judgment.
*A judgment Is the tin&l consideration
and terminationof a aoart of oompstent jurfs-
dIotIon upon the matters submitted to It in an
a&ion or proceeding.*Fort worth Acid Words
Y. City of Fort Worth, 248 S.W. 822, 824,
Words k Phrases, 3 Ed., Vol. 4, p. 607.'
"f3ensPally-- the ocmrte oonstrue etrlot-
ly statutes presorlbingfees, and reject Im-
plicationsas to the fixing at tees and the
orricers who are to reaeIVe them. . .I U Tex.
Jnrle., Clerks or Court, Mee on Compenea8105,
Section 2C, p. 250.
It is the opinion or thi.6 Department that the.
aotlon of plaintiff In entering a diecontlnaanceoa the
docket In YaOatiOn la a suit where15 the defendant had
not answered aad the peyIng of all costs that had accru-
ed thereon, lrould not be a jthgraent.
You are, thererorr,respectfullyadvised that
It Is the opInIon ai thle Departmentthat under the facts
stated In your letter, where.the plalntlfi enters a dIs-
continuanceon the docket la Vacation, In a suit wherein
the defendant has not answered, and vhere the plalaintirt
had paid all costs that have acorued thereon, that the
district olerk would not be entitled to charge a tee or
One Dollar for a rlnal judgment,end that .theclerk would
not be entitled to charge anything for the dIsmIssal.
Trueting that this sat:sfaatorllVanswers your
Inquiry, we are
APPROVEDAUG 18, 1939
COMMI-ITEE
.ATTORWEYGEtWiAL Cb TEXAS