
    Marion County v. Spalding.
    (Decided December 2, 1910.)
    Appeal from Marion Circuit Court.
    1. Court Records — Indexes Obliterated, Torn and in Ruinous Condition — Transcribing—Statutory Requirement. — In the matter of transcribing into new books certain indexes of the Marion circuit court that are “obliterated, torn, or in a ruinous .condition,” under sections 1632, 1633 aud’iRSá, Kv. Ht. Held, that it was entirely within tbe discretion of tbe Marion circuit court to have this work done, but in doing it tbe court bad not the -right to incorporate in it-h-e new boo’--. hoc?-s or records not included in the old that were not obliterated, torn or in a ruinous condition, or create a new record and impose the cost of this additional work on tbe county. Appellee, -however, who did the work should be paid a reasonable -price for all tbe work done that was necessary in copying such individual indexes as were obliterated, torn or in a ruinous condition, including such, work of -comparison as was reasonably necessary to verify the transcript; also the work necessary to change the Indexes so a,s to show in the style of the case the names of decedent or person represented.
    2. Danger of Delay — Compensation Allowed. — We furthermore conclude that it was not necessary for the -court to wait until the books or records were so obliterated, torn or in such condition as to make the work of transcription almo-st an impossibility, but that he had the power and discretion to act beforehand, and thus preserve the records of the court, which might not be susceptible of 'transcription if'he delayed much, longer. Tbe Marion circuit court gave judgment in favor of appellee for $1,500.00.
    3. Value of Service Rendered. — Held, it is manifest from this j.udgment ‘that itRe court allowed appellee to recover only tlie value of the services for transcribing the individual indexes, and that the court was of the opinion that such indexes were so obliterated, torn, or in such ruinous condition, as to make the work oi transcription reasonably necessary.
    HENRY S. McELROY for appellant.
    WM. M. SPALDING and BROWN & NUCKOLS for appellee. '
   Opinion op the Court by

Wm. Rogers Clay, Commissioner

Affirming.

On October 20, 1.906, the Marion circuit court, acting on the recommendation of a committee of the lawyers of the Marion county bar, entered the following order:

“It appearing to the court from personal observation and from the statements of the attornej^s of this bar that there has never been made or kept by the clerk of this court a general index to the civil orders of this court and that such index is badly needed for the convenience of the office of said clerk, the' attorneys, and the public generally, the single indexes being hadlv worn and defaced:
“It is therefore now ordered that the clerk of this court, Tom-B. Spalding, proceed to procure at once a suitable book for said purpose and make said general index of all the civil orders heretofore made in this court. Said index shall be made in type, and shall he a cross index of both plaintiffs and defendants in each case in which orders have been made including the names of decedents, assignors, and persons represented by others acting in a trust capacity, a.s well as names of the trustees or representatives, and shall place the pages and number of the order hook in which all judgments are entered in a column to themselves, marked ‘judgments.’ And the two first letters of each party to a suit shall he in alphabetical order. Said work when completed and accepted by this court to be paid for by Marion county at the rate how fixed by law for indexing; unless otherwise ordered, the court reserving the right to modify the amount to be paid for service under this order when the work is completed, and in the event that said clerk’s tenure in office expires by limitation or otherwise, before said work is completed and accepted, such part of said index as has been completed shall be paid for as indicated above.”

Pursuant to the above order, appellee, Tom B. Spalding, obtained, a large book for the purpose, and he and Ms son worked thereon for, approximately, two years. His daughter also did some work in connection with the matter, as did John M. Cooper, who worked continuously for about three months during the summer of 1907. Two others were employed on the book for a few days, the exact time not being shown.

Charging that the time, labor and money expended by him in preparing and completing the book was reasonably worth the sum of $4,166.80, appellee brought this action against Marion county to recover that sum. Appellant first demurred to the petition, and then answered denying its allegations. Proof was heard and the case submitted to the court, and judgment entered in favor of appellee for the sum of $1,500. Prom that judgment Marion county appeals, and appellee prosecutes a cross appeal.

Among the records of' the Marion circuit court are twenty-seven order books with mdividual indexes. At the time the order directmg the work was entered, these books were brought into court and placed before the judge. The information contained in each of the indexes is the style of the case and the pages upon which any orders, step, judgment or decree in that case appears. The indexes are designated by the same letters of the alphabet as the order books to wMch they belong respectively.

The book which appellee and his assistants made has about 400 pages, and contains the following matter in typewritten form:

“1. A consecutive transcript or copy of the individual indexes, except that the judgment or judgments in each case are placed in a separate column for ready reference.
“2. A cross index showing the name of the first defendant and first plaintiff in each action, the year of the filing and the number of the action.
“3. In the individual Mdexes the names of personal representatives, fiduciaries, and persons acting m other representative capacities are given in the style of the case rather than the name of the decedent of the person represented.”

This arrangement having been found to be unsatisfactory, appellee was directed to copy, not only this portion of the individual records, but also to show in the book m controversy the name of the decedent or person represented.

As appellee made no charge for the, work of indexing during his term of office, no question of a change of compensation during that time is involved, as the work was entirely outside and independent of his duties as clerk. On this appeal it is insisted by Marion county that the circuit .judge had no right to order the records transcribed at all; or, if he did, 'the amount allowed was far in excess of what would be a reasonable compensation for the services performed.

Sections 1632, 1633 and 1634, of the Kentucky Statutes, are as follows:

“Sec. 1632. Any county court may order any of the books or records in the clerk’s office of such court, or in the office of the surveyor of the county, to be rebound; or, when obliterated, torn, or in a ruinous condition, to be transcribed in new books, and shall make a reasonable allowance therefor, which shall be chargeable to the county.
“Sec. 1633. All courts having jurisdiction greater than the county court shall have the same power over the books and papers in their respective clerk’s offices as is conferred in the preceding section upon the county courts. All expenses incurred by such courts in this regard shall be paid out of the county levy as other claims, except that such expenses incurred by the Court of Appeals shall be paid out of the State treasury upon the warrant of the auditor to be issued when the order of the court directing the expense incurred and a statement of the costs of the same is filed in his office.
“Section 1634. Any book so transcribed, examined by the judge of the court, and an order made on the records of the court that the same is correct, shall have the same faith and credit that the book or record transcribed was entitled to.”

It is appellant’s contention that these sections authorize the court to order transcribed into new books only those indexes that are obliterated, torn, or in a ruinous condition, and do not authorize the court to have the individual indexes transcribed into one book. In our opinion the above sections of the statutes, reasonably construed, contain the only authority for the court’s action in the premises. The statute does not require that the record or books shall be transcribed in a new book of the same kind and character. We conclude that it was entirely within the court’s discretion to have such of the indexes as were obliterated, torn, or in a ruinous condition transcribed into one book for greater convenience. In doing this, however, the court had not the right to incorporate in the new hook, hooks or records not included in the old, that were not obliterated, torn, or in a ruinous condition, or create a new record and impose the cost of this additional work upon the county. Appellee, however, should be paid the reasonable price of all work that was necessary in copying such individual indexes as were obliterated, torn, or in a ruinous condition, including such work of comparison as was reasonably necessary to verify the transcription; also the work necessary to change the indexes so as to show in the style of 'the case the name of the decedent or person represented. We furthermore conclude that it was not necessary for the court to wait until the books or records were so obliterated, torn, or in such a ruinous condition as to make the work of transcription almost an impossibility, but that he had the power and discretion to act before hand, and thus preserve the records of the court which might not be susceptible of transcription if he delayed much longer.

According to appellee’s evidence, which was furnished by him and several witnesses of experience in doing similar work, all the work which he performed was reasonably worth about $3,500. According to appellant’s evidence, the work of transcription, including the cost of the book, was worth from $383.40 to $1,300. It appears that, before the order directing the work to be done was entered, the judge had the order books and individual indexes before him. During .the trial, the order- books and individual indexes were also brought into court. While appellee testified that some of them were legible, his evidence shows that the majority of them were torn considerably and defaced, and it would be very difficult, hard and tedious to use them in the event one desired to find the orders and judgments in any case.

The judgment in this case contains the following:

“This cause having been heretofore submitted to the court for opinion and judgment upon the pleadings, proof and exhibits, and the arguments of counsel and the court being sufficiently advised, is now of opinion and adjudges that the court had the right and authority to enter the order directing the clerk to transcribe the individual indexes described in the evidence and to order such transcription to be embraced in one book, and to order a reasonable compensation for such services and expenses to be paid by Marion county.”

The court then gave judgment in favor of appellee in the sum of $1,500. It is manifest from the foregoing judgment that the court allowed appellee to recover only the value of his services for transcribing the individual indexes, and .the court was of the opinion that such indexes were so obliterated, torn, or in such a ruinous condition as to make the work of transcription reasonably necessary. It may be that some of the indexes so transcribed were not in such condition as to require rhat they be transcribed, but in view of the fact that the evidence tends to show that for the work of transcription appellee was entitled to more than the court gave him, we can not say, even conceding that there were a few indexes that did not require transcribing, that appellee received more than he was entitled to.

On the whole case, we see no reason for reversing the judgment of the circuit court, and it is, therefore, affirmed, both on the original and cross appeal.  