Coal Co. v. Rosser (53 Ohio St. 12, 1895)

Bradbury, J.

The defendant in error on August 22, 1893, filed before R. R. Patterson, a justice of the peace in and for Athens county, Ohio, the following bill of particulars:

“ Hiram Rosser, plaintiff v. The Hocking Valley Coal Company, defendant.

“The defendant is a corporation, duly organized under the laws of Ohio, and doing business in Nelsonville, Ohio. Defendant is indebted to plaintiff in the sum of $6.82 for work and labor done and performed in and about the coal mines of said defendant . during the months of July and August, 1893, and at the request of said defendant. • Said sum is due and unpaid; frequent requests have been made for payment of the same. On the 18th day of August, 1893, plaintiff served upon defendant a notice in writing, demanding payment of said sum within three days thereafter. Said defendant has neglected and refused to pay said sum within three days thereafter in compliance with said demand.

“Therefore plaintiff prays judgment against said defendant for said sum of $6.82, and for his costs in this action, and for his attorney’s fee of $5.00, and interest from August 10, 1893.

“Buckley & Pettit,

“Attorneys for Plaintiff.”

The defendant below, plaintiff in error in this court, was duly served with summons, but did not appear before the justice at the time of trial nor make any defense against the claim of the plaintiff below. Whereupon the justice of the peace, upon the testimony presented by the plaintiff below, rendered judgment for him and against the defendant below for $6.82, the exact amount claimed, together with costs of suit and an attorney fee of five dollars.

Plaintiff in error appealed the cause to the court ■ of common pleas, where a petition was filed similar in all respects to the bill of particulars before quoted, except that an attorney fee of fifteen dollars was demanded instead of one of five dollars, as in the bill of particulars.

The plaintiff in error made no defense in the court of common pleas, and that court gave judgment against it for $7.00 and costs, including an attorney fee of ten dollars, five dollars of which was for services of an attorney in the court of common pleas, and five dollars for such services rendered in the proceedings before the justice of the peace.

■ The plaintiff in error objecting to that part of the judgment of the court of common pleas which required it to pay attorney fees for the benefit of its adversary, moved the court to retax costs by striking out the items relating to such fees. The co'urt of common pleas overruled the motion, and exceptions were duly noted. This ruling of the court of common pleas having been sustained by the circuit court, the cause was brought to this court to reverse the action of those courts, upon the ground that the statute upon the provisions of which their rulings rest is unconstitutional and therefore void.

This statute, 89 Ohio Laws, 59, section 6563