30 F. 667 | U.S. Circuit Court for the Southern District of Georgia | 1887
This is an informal motion to retax costs. The record discloses the following state of facts: The plaintiff instituted his action in the state court on a policy of insurance. The cause was removed to this court, by tbe defendant, under tbe act of March 3, 1875. The case was assigned for trial at the present term of the court, but it appearing, at the threshold of the trial, that it involved the adjustment of complicated accounts, the cause was referred to an auditor. Pending the hearing before the auditor, the parties agreed upon a settlement, in pursuance of which their attorneys caused the following order to be entered of record: “Dismissed, at defendant’s costs, by consent.” The costs were taxed by the clerk. Counsel for defendant now objects to the following item in the bill, viz.: “For making final record, 64 folios, @ 15 cents, $9.60,” — on the grounds (1) that the cause was settled between tbe parties without a formal trial, and that it is unnecessary to make a record of the proceedings; (2) that even if a portion of tbe proceedings are to be recorded, that such formal parts as the petition, bond, and order for removal ought to be omitted, as unnecessarily incumbering the record. It was admitted that the number of folios in the record was correctly counted. I am of the opinion that the objection is not tenable.
The circuit court of the United States is a court of record, — a court to which a writ of error lies. Mr. Justice Blackstone defines a court of record to be “a court where the acts and proceedings are enrolled in parchment, for a perpetual memorial and testimony.” The importance of preserving the proceedings of a court in any particular ease may not be apparent at the time of its determination, especially to the party hav
In. questions of res adjudicata, retraxit, and often in collateral issues, matters settled in a suit of this kind frequently spring into an importance not to be foreseen at the time of their disposition. If the making of the record depended upon the fact of the rendition of a judgment in the case, as is the practice of the state courts, it is nevertheless true that the dismissal of the case by consent of parties, under the direction of the court, at defendant’s costs, was practically a judgment in favor of the plaintiff, at least for costs, and to that extent it is a judgment of record, binding upon the parties. But I do not think the state law controls the national courts in a question of this character. This court is one of limited jurisdiction, and all the facts in a case necessary to give the court jurisdiction should be shown by the record. It should appear upon the face of the record that all the orders made by the court, and the judgment of the court for costs, which in the case at bar include as well the fees of the marshal, witnesses, auditor, and attorney, as of the clerk, wore made in a case properly brought in its jurisdiction, and this will not appear if the pleadings of the state court, together with the removal proceedings, are not, with the proceedings in this court, entered upon the record.
The eighth clause of section 828, Rev. St., provides that the clerk’s fee for making any record shall be 15 cents for each folio. The charge is therefore legal and proper.
It is ordered that the taxation of the costs, as made by the clerk, be ^sustained, and the motion to retax denied.