Opinion
Opinion No. 10.
October 25, 1977.
AMENDED RULE 45, ALABAMA RULES OF JUDICIAL ADMINISTRATION COSTS FOR CERTIFICATION OF COURT RECORDS
RULE 40, ALABAMA RULES OF JUDICIAL ADMINISTRATION DESCRIPTION OF AND FEE FOR TRANSCRIPTS
Mr. Allen Tapley, Administrative Director of Courts, has submitted to me, as Clerk of the Supreme Court of Alabama, pursuant to Section 6-105, Act No. 1205, Acts of Alabama, 1975 Regular Session, the following inquiries:
(1) Does the phrase, "court records," as used in amended Rule 45, Alabama Rules of Judicial Administration, cover charges for documents which are not, strictly speaking, court records, such as certificates of judgment or forms showing payment of judgment and court costs.
(2) Does the $1.00 charge per page for certified copies set forth in Rule 45 supersede the 10¢ per page charge for copies of the record on appeal as provided by Rule 40.
In my opinion, each of these should be answered in the negative. Reference is made to Opinion No. 9, dated October 25, 1977, in answer to inquiry from Mrs. Polly Conradi, wherein I stated, in my opinion, amended Rule 45, Alabama Rules of Judicial Administration, does not authorize a charge of $1.00 for certificates of judgment or forms showing payment of judgment and court costs.
In answer to the second inquiry, Rule 40 (B)(1) and (2) and amended Rule 45, Alabama Rules of Judicial Administration, should be read in connection with Section 12-19-20 (b), Code of 1975, (Section 16-109 (b)(1), Act 1205, Acts of 1975) which reads as follows:
The fees prescribed in this article shall be exclusive of all other fees except that (1) The administrative director of courts may, pursuant to supreme court rule, set schedule of fees for payments to court appointed officers, for preparation of transcripts on appeal and for certification of court records . . .
Rule 40 (B), Alabama Rules of Judicial Administration, was adopted pursuant to the authority to charge fees "for preparation of transcripts on appeal."
Rule 45 was adopted pursuant to the authority to set fees "for certification of court records."
Rule 40 (B) provides a schedule of "fees to be paid to clerks, registers or other officers of the court, for services rendered in preparing, assembling, numbering, completing and binding transcripts on appeal, and in making photocopies thereof, and in filing certificates of completion in accordance with the Alabama Rules of Appellate Procedure."
Rule 35 (c), Alabama Rules of Appellate Procedure, provides that "the costs of producing the necessary copies of the clerk's record and the reporter's transcript shall be taxable in the trial court."
Although the charges in Rule 40 (B), Alabama Rules of Judicial Administration, are referred to as fees, they are actually court costs. The fees referred to in Rule 45 are charges made for services rendered individuals not in the course of litigation. The fees in Rule 40 (B) are actually court costs which are allowed to a party for the expense incurred in prosecuting or defending a suit.
The basic difference between "costs" and "fees" was clearly stated by Chief Justice Brickell in Tillman v. Wood, 58 Ala. 578, 579 (1877), as follows:
"Costs are an allowance to a party for expenses incurred in prosecuting or defending a suit — an incident to the judgment, while fees are compensation to public officers for services rendered not in the course of litigation."
There is, therefore, no conflict between Rule 40 (B) and Rule 45, Alabama Rules of Judicial Administration. The fees prescribed in Rule 40 (B) are fees charged for preparing the clerk's record and the record on appeal in the course of an appeal. Rule 45 prescribes the fees to be charged for copies of records that are made not in the course of an appeal.