13 F. 111 | U.S. Circuit Court for the District of Massachusetts | 1882
The fee bill allows to the attorney of a prevailing party, in cases, on the common-law side of the court, a docket fee of $20 on a* trial by a jury or before referees; of $10, when judgment is entered without á jury; and of $5 when the case is- discontinued. And the only provision that if makes for a similar fee to solicitors in equity, or to proctors in admiralty, is of the largest of these sums “on a final hearing,” which 'it classes with a trial by a jury, or before referees at common law. Rev. St. §§ 823, 824.
We are of opinion that upon the face of the statute the intention of the legislature is manifest that it is only where some question of law or fact, involved in or leading to the final disposition actually made of the case, has been submitted, or at least presented to the consideration of the court, that there can be said to have been a final hearing which warrants the taxation of a solicitor’s or proctor’s fee of $20.; as, for instance, where the court, on motion and argument, dismisses for irregularity an appeal from the district court, as in the case before Mr. Justice Nelson of Hayford v. Griffith, 3 Blatchf. C. C. 79, or where the plaintiff discontinues, after the court has substantially decided the merits of the case, either by an opinion expressed at the hearing upon the merits, as in the case of The Bay City, before Judge Brown, 3 Fed. Rep. 47, or by a previous interlocutory decree, as in Goodyear Dental Vulcanite Co. v. Osgood, decided by Judge Shepley in February, 1878.
- In Howe v. Shumway, October, 1865, Mr. Justice Clifford, disregarding the practice of the clerk’s office, held that where by agreement of the parties a bill in equity was dismissed with costs, no solicitor’s fee should be allowed.
By the settled practice in equity, the plaintiff, before any decree in the case, may obtain, as of course, an order dismissing his bill with costs. Curtis v. Lloyd, 4 Mylne & C. 194; Cummins v. Bennett, 8 Paige, 79; 1 Daniell, Ch. Pr. (5th Am. Ed.) 790-793.
The order in the present case was entered in accordance with this practice, without notice to the defendant, or hearing or consideration of the case by the court. The only issue which had been joined was an issue of law upon the demurrer to the bill, no evidence had been taken, and the case had not even been set down for hearing.
The clerk’s taxation must therefore be modified by striking out the docket fee to the defendant’s solicitor. The statute having enacted thai no other compensation than as therein provided shall be taxed
As this appeal, though involving a small amount, presents a question of frequent occurrence in practice, we have consulted Judge Nelson, and he concurs in this opinion.
Taxation modified.
NOTE.
Fees Allowed to Officebs. Section 823 prescribes what fees are allowed to the clerk, district attorney, and other officers ;
Costs. Costs are not payable out of the fund in controversy,
Expenses—Allowance. The statute does not prohibit the allowance of such disbursements as are rendered necessary by order of the court;
Dbposxtioks. The attorney of the prevailing party is entitled to the pay of $2.50 for each deposition admitted in evidence, when it is agreed that they maybe read on the trial,
U. S. v. Cigars. 2 Fed. Rep. 495.
Canter v. Amer. Ins. Co. 3 Pet. 307; The Baltimore, 8 Wall. 377; The Liverpool Packet, 2 Sprague, 37; Derry v. Hersey, 21 Law Rep. 473.
In re Waite, 1 Low. 321; Ex parte Platt, 2 Wall. Jr. 453.
In re Williams, 2 Bank. Reg. 83.
In re Waite, 1 Low. 321.
Garretson v. Clark, 17 Blatchf. 256; S. C. 15 Blatchf. 70.
The Nassau, Blatchf. Pr. 601.
U. S. v. Ingersoll, Crabbe, 135.
Ex parte Robbins, 2 Gall. 320.
The Nassau, Blatchf. Pr. 601.
Stimpson v. Brooks, 3 Blatchf. 456.
Day v. Woodworth, 13 How. 363; Kneass v. Schuylkill Bank, 4 Wash. C. C. 106.
Dedekam v. Vose, 3 Blatchf. 153; Lyell v. Miller, 6 McLean, 422; U. S. v. Smith, 1 Wood. & M. 184; U. S. v. Packages, 18 Law Rep. 284.
Jordan v. Agawam Wool Co. 3 Cliff. 239.
Spaulding v. Tucker, 2 Sawy. 50.
National Bank v. Whitney, 103 U. S. 99.
Caldwell v. Jackson, 7 Cranch, 276; In re Stover, 1 Curt. 93.
Gross & P. Manuf’g Co. v. Gerhard, 8 Law Rep. 136.
Kitchen v. Woodfin, 1 Hughes, 340.
Kearney v. A Pile Driver, 3 Fed. Rep. 247.
The Christopher Columbus, 8 Ben. 239.
Prune v. Brandon Manuf'g Co. 16 Blatchf. 453.
Taylor v Woods, 3 Woods, 146. See The Emily B. Souder, 15 Blatchf. 85.
The Alice Tainter, 14 Blatchf. 225.
Vanderbilt v. Reynolds, 7 Law Rep. 523.
Clare v. National City Bank, 14 Blatchf. 445.
Warren v. Ives, 1 Flippen, 356; Penrose v. Penrose, 1 Fed. Rep. 479; Kreager v. Judd, 5 Fed. Rep. 957. See Gilman v. Libbey, 4 Cliff. 450.
Warren v. Ives, 1 Flippen, 356.
Dennis v. Eddy, 12 Blatchf. 95.
Neff v. Pennoyer, 3 Sawy. 335; Dennis v. Eddy, 12 Blatchf. 195; Brooks y. Byam, 2 Story, 553.
Railroad Co. y. The Collector, 96 U. S. 594.
Jordan v. Agawam Wool Co. 3 Cliff. 239.
Hussey v. Bradley, 5 Blatchf. 210; Troy I. & N. Factory v. Corning, 7 Blatchf. 16; Spaulding v. Tucker, 2 Sawy. 50.
The Perseverance, 3 Dall. 936.
Hathaway v. Roach, 2 Wood. & M. 63.
Hussey v. Bradley, 5 Blatchf. 210.
Prouty v. Draper, 2 Story, 199.
Whipple v. Cumberland C. Co. 3 Story, 84.
Hussey v. Bradley, 6 Blatchf. 211.
Hathaway v. Roach, 2 Wood. & M. 63.
Hussey v. Bradley, 5 Blatchf. 210; Woodruff v. Barney, 2 Fish. 244; Hathaway v. Roach, 2 Wood. & M. 63.
Parker v. Bigler, 1 Fish. 285.
Hathaway v. Roach, 2 Wood. & M. 63; Woodruff v. Barney, 2 Fish. 244.
Hussey v. Bradley, 5 Blatchf. 210.
Bridges v. Sheldon, 18 Blatchf. 507.
Nichols v. Brunswick, 3 Cliff. 88; Whipplo v. Cumberland C. Co. 3 Story, 84; Hathaway v. Roach, 2 Wood. & M. 63. See Sebring v. Ward, 4 Wash. C. C. 546.
Troy I. & N. Factory v. Corning, 7 Blatchf. 16; Dedekam v. Vose, 3 Blatchf. 77.
Schmieder v. Barney, 7 Fed. Rep. 451.
Strafer v. Carr, 6 Fed. Rep. 466.
Goodyear D. V. Co. v. Osgood, 13 O. G. 325.
Goodyear D. V. Co. v. Osgood, 13 O. G. 325.
Goodyear D. V. Co. v. Osgood, 13 O. G. 325.
The Young Mechanic, 3 Ware, 58.
Miller v. Scott. 2 Bank Reg. 86; The Bay City, 3 Fed. Rep. 47.
Strafer v. Carr, 6 Fed. Rep. 466.
Goodyear D. V. Co. v. Osgood, 13 O. G. 325.
The Bay City, 3 Fed. Rep. 47.
Dedekam v. Voso, 3 Blatchf. 153.
Jones v. Schell, 8 Blatchf. 79.
m) Hayford v. Griffith, 3 Blatchf. 79.
Miller v. Scott, 2 Bank. Reg. 86.
p) Davidson v. Coates, 6 Bank. Reg. 301.
In re Mead, 8 Phila. 174.
Doughty v. Manuf’g Co. 4 Fish. 318.
Beckwith v. Easton, 4 Ben. 357.
Jerman v. Stewart, 12 Fed. Rep. 271.
Beckwith v. Easton, 4 Ben. 357.
Dedekam v. Vose, 3 Blatchf. 77.
Fry v. Yeaton, 1 Cranch, C. C. 550.
Hathaway v. Roach, 2 Wood. & M. 63.
The Avid, 3 Ben. 434.
Troy I. & N. Factory v. Corning, 7 Blatchf. 16.
Jermati v. Stewart, 12 Fed. Rep. 271
Stimpson v. Brooks, 3 Blatckf. 456.