195 F. 984 | S.D.N.Y. | 1912
In Jerman v. Stuart (C. C.) 12 Fed. 271, Judge Hammond allowed costs to be taxed on depositions which were read under a stipulation that they might be used in a case in the federal court. They were on file in the clerk’s office in the state court of Tennessee, and had been taken in a former suit in that court. In Wooster v. Handy (C. C.) 23 Fed. 49-57, Justice Blatchford held that costs could not be taxed for depositions in cases in which the depositions were read under a stipulation which admitted them in evidence in the case in question; they having been taken in the first case. The same judge, at page 60 of the same case, however, determined that when the deposition was originally entitled in each of a number of cases at once, and the parties had originally stipulated that it should be used in all, the fee was allowable, although it was written out, and the witnesses were sworn, but once.
In a case where the depositions were all entitled in two suits, and by stipulation were originally to be used in either, two fees were likewise allowed. Archer v. Hartford Fire Insurance Company (C. C.) 31 Fed. 660. Judge Lowell ruled the same way in Waterman Company v. Lockwood (C. C.) 128 Fed. 174. In American Diamond Rock Boring Company v. Sheldon (C. C.) 28 Fed. 217, Judge Wheeler ruled that where depositions were originally taken and entitled in one case
Judge McKinnon and Judge Ache,son held that where the depositions were taken in suits in other districts, and were afterwards read into the evidence in another suit on stipulation, a fee was not allowable. Cary v. Lovell Mfg. Co. (C. C.) 39 Fed. 163. In this they followed Wooster v. Handy, as well as Winegar v. Cahn (C. C.) 29 Fed. 676. In the last-mentioned case Judge Severens disallowed such fees where the depositions taken in a former case were stipulated into the case at bar. He overruled Jerman v. Stuart to the contrary.
Prima facie, perhaps, there should be two docket fees where there are two suits tried. If tried at the same time, it will often happen that the same considerations apply to each case; but that depends upon circumstances, and a single trial does not alone prove that there are not separate claims, involving different preparation and to some extent different proof. The only cases where a separate docket fee is not proper are such cases as collisions, where the defense and the cross-libel depend generally upon exactly the same facts. There is good reason in such cases for only one docket fee, and it is significant that' The'Medusa, supra, was such a case. I do not quite see why in such cases there should ever be two fees. The issues are precisely the same in.such cases as though the matter had been set up in defense, and the only added fact is that the cross-libelant’s boat has been injured. However, the rule in this district has been long different, and several of the judges approve of it. Certainly it is true that in matters like costs the first requisite of a rule is certainty, because any chance of litigation over such small sums is worse than an occasional failure of exact justice. I scarcely like to say that in collision cases only one fee shall be allowed, because I shall be making an exception to an accepted rule which in most cases probably works well; a cross-claim generally involving an independent determination, even when tried with the chief claim. Besides, the fee bill is not oppressive, at best, and the proctor’s returns are modest enough.
It hardly seems to me that enough is shown to upset the established rule, and I will affirm the taxation.