AGO 2005-02.

• Case Date: November 07, 2005
• Court: Indiana

Indiana Attorney General Opinions 2005. AGO 2005-02. STEVE CARTER ATTORNEY GENERAL November 7, 2005OFFICIAL OPINION 2005-2The Honorable Kathy Kreag RichardsonIndiana House of Representatives200 W. Washington Street Re: Whether a Garnishee is Considered a Defendant for the Purposes of Collecting Court Filing Fees under Indiana Code section 33-37-4-6 or 33-37-5-28Dear RepreseIndianapolis, IN 46204-2786ntative Richardson: You requested a legal opinion concerning whether a garnishee is considered a defendant for court fee collection purposes under Indiana Code sections 33-37-4-6 and 33-37-5-28. During the 2005 legislative session, House Bill 1113 (Pub. Law No. 176-2005)(fn1) revised section 33-37-4-6 and added section 33-37-5-28 in pertinent part as follows:(fn2)

Sec. 6. a) For each small claims action, the clerk shall collect the following fees:

(1) From the party filing the action:

(A) a small claims costs fee of thirty-five dollars ($35); and

(B) a small claims service fee of ten dollars ($10) for each named defendant.

(2) From any party adding a defendant, a small claims service fee of ten dollars ($10) for each defendant added in the action.

. . .

Sec. 28. (a) Except as provided in subsection (c), this section applies to a civil action in which the clerk is required to collect a civil costs fee under IC 33-37-4-4(a).

(b) The clerk shall collect the following:

(1) From the party filing the civil action, a service fee of ten dollars ($10) for each additional defendant named other than the first named defendant.

(2) From any party adding a defendant, a service fee of ten dollars ($10) for each defendant added in the civil action.

(c) This section does not apply to an action in which service is made by publication in accordance with Indiana Trial Rule 4.13.

Brief Answer It is the opinion of this office that the term "defendant," as used in Indiana Code sections 33-37-4-6 and 33-37-5-28, was not intended by the Indiana General Assembly to include "garnishee defendants" and therefore a clerk may not collect a service fee for each named garnishee defendant. Analysis Indiana Code chapters 33-37-4 and -5 set out various court fees. Court fees "are generally those amounts paid to a public official, such as the clerk of the court, by a party for particular charges typically delineated by statute . . . ." U.S. v. Idaho Dept. of Water Res., 508 U.S. 1, 8 (1993). "The term `fees' is applied to the items chargeable by law between the court officer...