FEES ‑- CLERKS ‑- GUARDIANSHIP ‑- JUDGMENT FEES

FEES ‑- CLERKS ‑- GUARDIANSHIP ‑- JUDGMENT FEES

The county clerk may charge a judgment fee for the entry of a judgment in a guardianship proceeding against the guardian and surety, such judgment running in favor of the ward and the newly appointed guardian.

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                                                                 October 2, 1956

Honorable Hugh H. Evans
Prosecuting Attorney of Spokane County
Spokane County Courthouse
Spokane, Washington

                                                                                                              Cite as:  AGO 55-57 No. 323

Attention:  !ttMr. Leo J. Driscoll

            Civil Deputy

Dear Sir:

            You requested an opinion of this office on the following question:

            May the county clerk charge a judgment fee for the entry of a judgment in a guardianship proceeding against the guardian and surety, such judgment running in favor of the ward and the newly appointed guardian?

            We answer your question in the affirmative.

                                                                     ANALYSIS

            The statutes involved in the question are in pertinent part as follows:

            RCW 36.18.020

            "Clerks of superior courts shall collect the following fees for their official services: The plaintiff, or other party instituting any civil action or proceeding, or the appellant on appeal from justice court, when the case is entered in the superior court or when the first paper on  [[Orig. Op. Page 2]] his part is filed therein, shall pay a fee of five dollars;

            "For defendant, or other adverse parties, or any one or more of several defendants or other adverse parties, or interveners, appearing separately from the others, or a respondent on appeal from justice court, shall pay when his or their appearance is entered in the cause, or when his or their first appearance is filed therein, a fee of three dollars;

            "For preparing and certifying copies, or transcripts of records, with or without seal for the first legal size page, one dollar; for each additional legal size page, fifty cents;

            "For the certifying of copies furnished or transcripts of records furnished which copies or transcripts are not prepared by the clerk, one dollar for the first legal size or smaller page and twenty-five cents for each additional legal size or smaller page;

            "For the entry of judgment or dismissal in all civil actions, with or without costs, three dollars shall be paid if no adverse party has appeared; otherwise six dollars;

            "In probate proceedings, the party instituting such proceedings shall pay, at the time of the filing of the first paper therein, a fee of six dollars; upon the filing of a petition for the sale of real estate, there shall be paid at the time of filing such petition a fee of three dollars; upon the filing of a final account in the settlement of the decedent's estate, there shall be paid a fee of six dollars; for filing any petition to contest a will admitted to probate, there shall be paid a fee of twenty-five dollars;"

            RCW 36.18.050

            "Every officer who shall be called on or required to perform service for which no fees or compensation are provided for in this chapter shall be allowed fees similar and equal to those allowed him for services of the same kind for which allowance is made herein."

            Guardianship proceedings are generally controlled by chapters 11.88 and 11.92 RCW, which constitute one segment of Title 11 entitled "Probate  [[Orig. Op. Page 3]] Law and Procedure."  Thus, guardianship proceedings are now recognized as probate proceedings and, thus, must be included in the term "probate proceedings" as employed in RCW 36.18.020.  In Re Deming, 192 Wash. 190.

            The next question which necessarily arises is whether the sixth paragraph of RCW 36.18.020, pertaining to "probate proceedings," necessarily restricts clerks' fees, that may possibly be charged in the course of probate, merely to the three situations stated in that paragraph.  We do not believe that was the intent of the legislature.

            It is our opinion that the purpose of the said "probate paragraph" was to provide for clerks' fees in certain instances peculiar to probate proceedings and not to be the exclusive statutory authority for authorizing clerks' fees in matters relative to probate matters.

            Certainly paragraph 3 of RCW 36.18.020, which refers to fees for certifying copies or transcripts of records, applies as well to transcripts and records of probate matters as it does to strictly civil matters.

            A "final judgment" is an instrument that is not peculiar to probate proceedings alone but encompasses the field of civil law in general.  Like certified copies of transcripts of records, it may arise out of a contract or tort action as well as a proceeding in probate.  A "final judgment" is unlike a "final account in the settlement of a decedent's estate," which latter instrument is known exclusively to probate proceedings.

            The relationship of probate proceedings with civil proceedings in general is well expressed inFilley v. Murphy, 30 Wash. 1, as cited inMeeker v. Winyer, 48 Wash. 27:

            "'. . . In this state we have no probate court, properly speaking, as distinguished from the court that entertains jurisdiction of other matters.  The court of general jurisdiction also hears and determines probate matters.  Matters pertaining to probate are referred to what is called "probate procedure," as distinguished from what is denominated "civil" or "criminal procedure."  But when the court, sitting in a probate proceeding, discovers in a petition the statement of facts which forms the basis of a controversy, we see no reason why it may not settle the issues thereunder when an appearance has been made thereto, and then proceed to try it in a proper manner, as any other civil cause.'"

             [[Orig. Op. Page 4]]

            RCW 36.18.050 provides that an officer, such as a county clerk, when called on to perform a service for which compensation is not specifically provided, may charge a fee equal to that for a service of a kind for which compensation is allowed.

            The fifth paragraph of RCW 36.18.020 specifies a charge to be made in civil proceedings for filing a judgment.

            Thus, it is our opinion that the sixth paragraph of RCW 36.18.020 provides authority for clerks' fees in proceedings which refer only to probate matters, but that those matters which arise in probate proceedings which are common to other phases of civil practice, such as final judgments, and for which clerks' fees are provided, are subject to a clerk's fee by virtue of RCW 36.18.050.

            We hope the foregoing analysis will be of assistance to you.

Very truly yours,

DON EASTVOLD
Attorney General

DOUGLAS HARTWICH
Assistant Attorney General