
    Albert Beem v. John H. Palmer, Circuit Judge of Newaygo County.
    
      Practice in circuit court — Assumpsit—Appeal—Nonsuit—Costs— Trial fee — Discretion of court — Taxation.
    1. How. Stat. § 9004, which, provides for the allowance to the prevailing parties in suits at law, commenced or brought into the circuit court by appeal or otherwise, of-certain attorney’s fees, fixes the fee for the trial of an issue of fact in an action of assumpsit at $10.
    2. The issue of law referred to in the provision'of the statute giving an increased attorney fee for the trial of issues of fact and law, when tried at the same time or term, is an issue framed upon the record.
    3. "Where the plaintiff in an appeal case, submits to a nonsuit at the circuit after the testimony has been taken and the argument begun, and the court awards full costs to the defendant, its discretion under How. Stat. § 7026, to award the costs, or such part thereof as it may deem just and right, to either of the parties, in view of the particular circumstances of each case, is at an end, and it is the duty of the clerk to tax the costs, including a trial fee, at the amount provided by statute; and on appeal from his taxation the power of the court is limited to a correction of the errors of the clerk, if any.
    
      Mandamus.
    
    Argued October 31, 1893.
    Granted in part November 1, and opinion filed November 10, 1893.
    Relator was sued in justice’s court in an action of assumpsit, and from a judgment in bis favor for costs plaintiffs appealed to the circuit, and upon' tbe trial voluntarily submitted to a nonsuit, whereupon a judgment for costs was entered in favor of relator. The costs, as taxed by the clerk, included a trial fee of $15. Plaintiffs appealed from the taxation, claiming this item to be excessive and unauthorized, and respondent struck the same from the taxed bill. Relator applies for a mandamus to compel respondent to reinstate the item, claiming to be entitled, thereto under How. Stat. §§ 8967, 9004, the practice prevailing in that circuit of taxing a trial fee of $15 in an action of assumpsit while respondent contends that under How. Stat. § 7026, the question of costs was discretionary.
    
      W. D. Fuller, for relator.
    
      W. D. Leonardson, for respondent.
   Per Curiam.

The writ will be granted requiring the respondent to tax an attorney fee of $10 as for the trial of an issue of fact, the trial having been commenced, testimony taken, and argument begun before nonsuit. The court having awarded full costs to relator, its power to exercise a discretion was at an end, and it became the duty of the clerk to tax the same at the amount provided by statute; and on appeal from his taxation the power of the court was limited to a correction of the clerk's errors, if any.

Under How. Stat. § 9004, the fee fixed for the trial of an issue of fact in an action of assumpsit is $10. The term issue of fact" is to be construed in its ordinary sense. It cannot be said that, as a trial of an issue of fact may, as it generally does, involve the consideration by the court of questions of law, therefore the prevailing party is entitled to tax a $15 trial fee in an action of assumpsit. The issue of law named in the statute is.an issue framed upon the record.  