
    Conway v. The McG. & M. R. R. Co.
    1. Costs: service op notice. The service of notice of appeal from an award in an ad quod damnum proceeding may be made by any one not a party thereto, but if served by another than an officer his fees therefor cannot be taxed as a part of the costs.
    
      Appeal from Palo Alto Circuit Court.
    
    Tuesday, April 18.
    The defendant, to procure the right of way, caused the same to be appraised by commissioners selected by the sheriff, from which appraisement the plaintiff and ten others appealed to the Circuit Court. The appeals were separately taken, and tlhe attorneys for each of the appellants were the same. The notices of appeal were served by one of said attorneys. Those on the sheriff were all served at the same time, and the amounf charged and taxed in each case as a part of the costs was one dollar and thirty cents. This is true as to the notices served on the defendant, except that the amount charged and taxed in each case was ten dollars and sixty cents, the whole amount being one hundred and thirty dollars and ninety cents. The defendant moved the court to re-tax the costs, which motion being overruled, the defendant appeals. It is agreed by the parties that the decision in this case shall determine and be applicable to each and all of said causes.
    
      J. Q. Patterson and T. W. Harrison, for defendant.
    No appearance for plaintiff’.
   Seevers, Ch. J.

The Code provides that such notices may be served by any one not a party to the action, but does not in terms provide any compensation. For similar services performed by a sheriff or other officer the Code fixes and regulates the compensation, mode of payment, and expressly provides that the same shall be taxed as a part of the costs in the action or proceeding. The Code also provides-that “the term sheriff may be extended to any person performing the duties of the sheriff, either'-' generally or in special cases.” Sec. 45, Sub-division 19. This provision does not authorize any person other than the sheriff to serve notices or levy executions and sell property, but whatever authority there is upon that subject is found in subsequent portions of the Code, therefore the section referred to has no bearing on the question under discussion.

All costs and fees are recovered and' taxed only under and by virtue of the statute, and as none are allowed, required or' permitted to.be taxed except when the service is performed-by some officer, no other person performing such service can have his fees taxed as a part of the costs. If a notice is served by any person other than an officer, he must look alone to the party employing him for his compensation, the amount' of which is in no wise regulated by statute, but is the subject of contract, and in the absence of any contract the party performing the service will be entitled to a reasonable compensation for the services performed.

Reversed.

Yol. xliii. — 3  