17 F. 2 | U.S. Cir. Ct. | 1883
Until the practice of this court conforms more closely to the equity rules, and the analogies to which equity rule 90 directs us for our government, and is less influenced hv the more modern
There are other irregularities of practice relied on to defeat the docket fees in these cases that can be accounted for only -by this disregard of our own, and the mistaken application of the state practice. For example, these cases have never, in fact, been set for hearing at all. Our state practice requires the clerk, as soon as answer is filed, to set ail cases for hearing on the hearing docket. It has always been so done by the clerk of this court; and it may be doubted if any equity case in the court has ever'been properly set for hearing according to the practice that should govern us. 2 Daniell, Ch. Pr. (5th Ed.) 964-971. The eases go to the trial docket, under the practice grown up in the clerk’s office, even before answer filed, and are called term after term, and whatever is to be done is accomplished * without the least regard to the technical practice.
, Again, our state practice, by statutory regulation, permits a plaintiff until final decree to dismiss his dull at will, and before the clerk. Not so here. The right of the plaintiff to dismiss .is not an unqualified one, and it can never be properly done in the clerk’s office, except, perhaps, by force of equity rules 2 and 5 in the special case provided for in equity rule 66; and it is only, perhaps, by the court, in term-time, that any dismissal can be made, it not being one of those interlocutory steps authorized to be done in vacation or at rule-days for the preparation of a cause, but essentially a final disposition of it., Equity Rules, Nos. 1-6; 1 Daniell, Oh. Pr. 790-812; Stevens v. The Railroads, 4 Fed. Rep. 97.
Yet the state practice was attempted to be followed in these cases, and we have in one of them the anomaly of an attempted dismissal' at .rules before the clerk, even after an account had been ordered. With this constant tendency to mix state with federal, practice, which
But the mistake the plaintiff makes here is to claim that because on tho hearing he procured a decree for an account and for costs he is the prevailing party, and no docket fee can be taxed. That was an interlocutory decree in the sense of the practice in matters of costs, and, whatever may be its effect as to other costs, had nothing to do with the docket fee, which is to be decreed only on a “final hearing.” I think, moreover, if the plaintiff dismisses after a decree for account and inquiries, the order of dismissal necessarily revokes the former decree for account and costs, and the defendant is entitled to his full costs, as when the bill is dismissed on application of the plaintiff in other cases; but it is not necessary to decide that in this case, it being clear that the judgment given for costs against the defendant by the decree for the account did not apply to the docket foe. That foe is left to the “final hearing” for allowance and taxation.
We have, then, the simple question presented whether the defendant is entitled to recover a docket fee for his solicitor, to be taxed when the plaintiff takes an order to dismiss his bill in the ordinary way, or “without prejudice.” It is a question between party and party, and one arising under the law of costs as applicable to a court of equity, and not ono between the attorney and his client, or the attorney and the losing party. Like the fees of the clerk or marshal, those of an attorney or solicitor are payable to him by the party for whom the services are rendered, (his client, in the case of an attorney,) but are taxable, under certain circumstances, as costs against the losing party in favor of the prevailing party at law, and as the court may direct in equity. Rev. St. § 823; Caldwell v. Jackson, 7 Cranch, 276; Anon. 2 Gall. 101; In re Stover, 1 Curt. 201; Lessee v. Arbuncle, Pet. C. C. 233; In re U. S.v. Cigars, 2 Fed. Rep. 494.
Of course, not all the charges of the attorney against his client were taxable as costs, but certain special items were, under the general law. In some states, notably Tennessee, this allowance of costs to attorneys never prevailed, mostly for the reason that under the practice the services usually performed by the attorney, for which the charges were taxable, were relegated to the clerk or sheriff. But in other states, as in New York, it was customary to tax attorney’s
The rule at law was to tax them in favor of the prevailing party as a matter of right; but in equity, while this was the general rule, the court, in its discretion, governed by well-settled principles of judgment, may refuse costs, tax them against the prevailing party, divide them, enlarge the items of taxation, or otherwise regulate the allowance as it may deem just. Trustees v. Greenough, 105 U. S. 535; Lottery Co. v. Clark, 16 Fed. Rep. 20; U. S. v. Treadwell, 15 Fed. Rep. 532; Wiegand v. Copeland, 14 Fed. Rep. 118. And it is important to remember that, both at law and in equity, there were interlocutory costs and final costs. Those that were interlocutory were such as were allowed, taxable, and payable during the progress of the cause from time to time, as different stages were reached; and those that were final were such as were not allowable, taxable, or payable until the case had been finally determined. But in all cases the items were well ascertained, and usually were the subject of specific regulations fixing small sums for particular services of the clerk, attorney, or other officer of the court. Those that were final were not necessarily for services performed in and about the ceremony of trial or “final 'hearing,” but were for services performed from the very commencement, all along through the case, and included all costs not strictly taxable as interlocutory which were comparatively less, and were limited to those that strictly belonged to the interlocutory proceeding itself.
It is not necessary to go into any more particular explanation of this distinction between interlocutory and final costs, nor those often obscure distinctions pertinent to the general subject, but not kept up under our new system, which grow out of regulations for taxing costs as between party and party simply, or between party and party as if between ’ solicitor and client, or the summary taxation statutes designed to control the relation and the fees chargeable between the solicitor and the client, but having no necessary connection between the parties to the suit. •
But the practice on the subject of costs as it existed when our judicial system was organized .cannot be overlooked in construing our legislation affecting the practice any more than we can ignore it in other matters of more importance, particularly since the equity rules specially refer us for analogies to the old practice in all its departments. 2 Daniell, Oh. Pr. (5th Ed.) Í376,1378, note 1, 1379, 1395, note 6, 1398, note 4, 1410, note 4, 1434-1452; 2 Mad. Ch. 413-436; 1 Newl. Ch. 393-427; 2 Newl. Ch. 390 ; Beames, Eq. Costs, (20 Law Library,) 4, 85, 159, 160, 184, 214-230, 256; 2 Bac. Abr. it. “Costs,” (Bouv. Ed.) 183; 2 Tidd, Pr. (3d Amer. Ed.) 945, 976;
The fallacy of the argument made here against taxing the docket foe for the solicitor consists in assuming that it is a kind of honorarium for the work gone through with in the ceremony of a trial at the “final hearing,” and there is an unnecessary conflict of suggestion as to what amount of ceremony must be had to entitle the solicitor to this fee. It is treated as a sum allowed for a specific thing done, like, for example, the dollar allowed the clerk for issuing a writ. It is not sucli an allowance at all. The system of allowing small sums for specific work done is kept up as to the clerk, marshal, and commissioners, hut that system as to the attorneys is abrogated, and they aro allowed a lump sum for all their fees in a case, except, alone, the deposition fee, which, again, is a lump sum for each deposition, irrespective of the work done on it. It is called a “docket,” fee, and the use of that word indicates that it is not allowed for tho work of going through a “final hearing,” hut for all the service in a case. Too much stress has been put upon, the use of the words “final hearing,” as a discrimination in the character of the cases in which this docket fee is taxable and those in which it is not; and there has been a misleading adherence to a supposed analogy of construction found in the allowances prescribed for “cases at law” by the same statute.
Again, a too-isolated attention is paid to this section 824- of the Revised Statutes, in considering this docket feo, and too little attention to other parts of the same statute found at sections 823 and 983 of the Revision. Reading the whole statute together, as originally passed, and as it is found in the Revision, in the light of previous legislation and the practice under that legislation, and the law of costs at law, in equity, and in admiralty, as shown by the above-cited authorities, (as it must he read to understand it,) and it is plain that these “docket fees” in civil cases, as well as the deposition feos, n-e a lump sum substituted for the small “fees” allowed attorneys and solicitors under the old system, chargeable to and collectible from their clients, in addition to “such reasonable compensation for their services” as they may charge and receive, (Rev. St. § 823;) and that this lump sum is only taxable as costs against the losing party “in cases where by law costs are recoverable in favor of the prevailing party.” Rev. St. § 983. In other words, the whole general law establishing the principles upon which costs are or are not taxable as between party and party is adopted, and this statute only prescribes the items that may he taxed in the bill. And here, now, and in every equity case when the court comes to adjudge costs, it will determine what costs and to which party they are taxable; and this not alone upon two words in one section, hut upon the whole statute and the general law which it adopts.
But, upon an implication based upon the use of two indefinite
Now, no book of practice or accurate writer ever describes the trial of a cause on its merits as the “final hearing.” There was “a subpoena to hear judgment” and a “hearing,” but it is called “the hearing,” not a “final hearing.” 1 Bouv. Diet. tit. “Hearing;” 2 Daniell, Ch. Pr. 967-986. Demurrers are “heard,” and pleas are set down for “hearing” or argument, and exceptions to reports are sot for “hearing,” etc.; but the trial on the merits is “the hearing.” It may ox-may not be the final hearing, fox- after it there often come other heax-ings, such as exceptions to the master’s report, often more important and formidable than the other hearings, ox- on further applications for instructions, etc.; so that, strictly speaking, the “final hearing” is the last hearing. At least, it cannot be accurately applied to the trial on bill and answer, or on bill, answer, replication, and proof, and ‘confined to that. But the distinction between final costs and interlocutory costs was well established, and may well be supposed to have been in the minds of the legislature when dealing with the subject of costs. The former are awarded, not necessarily, nor always properly, though possibly they are generally, by the decree made at the hearing, “upon the bill, axxswer, replication, proofs, and former •proceedings had,” as the formula goes, fox- a decree “on the merits,” as it is called at the bar, and in common parlance. The “final” costs may -be, and should be, reserved until the very end of the case, which often comes after “the hearing,” when the matter of costs is “finally” disposed of by the court. As an illustration of this distinction, the familiar test of a final decree may be referred to, for it is often said that a decree is final which adjudges costs.
It is to be observed that the statute use3 the words “on final hearing,” not “for final hearing;” “on a trial by jury,” not “for a trial by jury;” “when judgment is rendered without a jury,” not for a judgment so rendered; and “when a cause is discontinued,” not for the discontinuance. But subsequently the phraseology is changed, and
Indeed, this act of congress intends only, by such phraseology, to prohibit interlocutory costs to bo taxed for fees paid to attorneys, solicitors, and proctors, as, but for the statute, they might be. It does not prohibit interlocutory costs to be taxed and paid for services of clerks, marshals, and commissioners, and it is the constant practice to allow them, on continuances, the overruling of demurrers, hearings on the sufficiency of pleas, etc. But as to his attorneys, solicitors, and proctors, the prevailing party must await the final decree as to costs—and this is not necessarily that decree made at the hearing on the merits, for often the decree for costs comes long after that— and then take a lump sum for all the services. If his ease be at law, and there has been a jury trial, $20; if a judgment without a jury, $10; and if a discontinuance, $5. If his case be in admiralty (except in a-special case mentioned in the proviso) or equity, always $20, whenever the case is “finally heard” as to costs. There is, by this construction, no distinction between cases at law or in equity as to the rule that only final and no interlocutory costs shall be allowed for the attorney. They are all alike in respect of this, but for obvious reasons there are graded fees allowed by the statute in law cases, and one sum in equity or admiralty cases, and this because of the comparative differences in the labor of preparation. There could be no reason for allowing a fee of $5 to be taxed when a lawsuit is discontinued, and none when a bill in equity is dismissed; but good reason for allowing $5 in the one case and $20 in the other, if we take into view the mere worth of the service. But when we consider the rules of law which regulate both courts, as old as the law itself, and that section 983 of the Revision adopts those rules in the plainest terms, and construe the whole statute together in the light of the law of costs applicable to the two cases, and remember the excess of professional labor in equity over law cases, the reason of the distinction in amount and the necessity of no distinction in the principle of taxation at once appear. The whole statute then becomes consistent in all things, and aligns itself completely with well-established principles, which are found in the law of costs as the product of a most wise and intelligent system of legislation, as venerable and binding as any known to our jurisprudence.
At common law—that is, the most ancient common law—costs were not known, but the plaintiff who made a false clamor, and either failed to try his ease, or, trying it, failed to sustain it, was amerced heavily, and the fine went to the king as a penalty for his invasion of a court of justice. It was the same if he took a nonsuit. 17 Amer. Law Reg. (Ñ. S.) 693, and authorities above cited.
Mr. Beames, who wrote a little before our equity rules were promulgated of the practice as it was then understood, gives an intelligible account of the general principles on which a court of equity acts in giving or withholding costs; and according to these principles, as I have endeavored to show, we are bound to determine the questions on this motion, for it is now for the court to decide whether these defendants are entitled to have costs, and if so, what costs, taxed as “recoverable by law” in favor of the prevailing party, for sums presumably already paid by them to the clerk, marshal, and solicitor, or for which they are liable to these persons. Bev. St. § 983.
It is within the discretion of the court to give or withhold them on either side, or to give some and withhold others, or to divide them, not arbitrarily, but according to the practice known to courts of equity and found.in the authorities on the subject. This author tells us that the statute of 17 Bichard II. c. 6, (A. D. 1394,) was the very foundation of costs in equity, and it enacts:
“Forasmuch as people be compelled to come before the king’s council, or in the chancery, by writs grounded upon untrue suggestions that the chancellor for the time being, presently after that such suggestions be duly found and proven untrue, shall have power to ordain and award damages according to his discretion to him which is so troubled unduly, as before is said.” Beames, Eq. Costs, 4.
It is noticeable that the very question we have in this case arose • on this statute, and Lord Coke gave it as his opinion, citing some decisions in theYdar Books, that, on the strength of the words italicized in the above, extract, costs were not taxable unless the case was tried, and therefore were not recoverable upon dismissal or demurrer. Beames, Oh. Costs, 6, and note; 2 Oomyn, Dig. 426, “Costs.” Subsequently Lord Hardwicke refused to recognize the force of this construction, or that the powers of the court were limited by this statute, and claimed that always and without its authority the court, “from conscience and arbitrio boni viri, as to satisfaction on one side -or other, on account of vexation,” decreed costs. Id. 8; Burford v. Lenthall, 2 Atk. 551.
The.statute of 15 Henry. YI. c. 4,, recited that “divers-persons were
This author, in other places above referred to, shows conclusively that everything was done, by legislation and by the practice of the court, to give a defendant full costs when the plaintiff dismissed his bill; and this legislation was continued to the latest statutes long after he wrote, as will be seen by reference to the other writers above cited.
Now I cannot think that upon an implication based on what I have endeavored to show was a somewhat loose and untechnical use of two words—“final hearing”—in fixing the amounts to be taxed as costs, we are to repeal all this legislation which is a part of that law to which section 983 of the Eevised Statutes and equity rule 90 refer us for the principles upon which we are to proceed “where by law costs are recoverable in favor of the prevailing party.” It is contrary to all the canons of construction to do this, and is merely sticking in the hark of one phrase used in the statute to the neglect of the rest of it.
A plaintiff, as will appear by the authorities cited, cannot dismiss his bill without a hearing by the court, nor without its order. This is especially so when he asks to dismiss “without prejudice,” as was done in some of these cases. And, while it is quite a matter of course to grant the order, it is not absolutely so, and it will not be done where the defendant has acquired the right to object. Stevens v. The Railroads, 4 Fed. Rep. 97; Booth v. Leycester, 1 Keene, 247; S. C. 15 Eng. Ch. 247; 1 Daniell, Ch. Pr. 790. The passing of this order is done on a “hearing,” to all intents and purposes, and it is a “final”
Until this act of 1853 our own legislation was quite barren on the subject of costs. It is not necessary to go into it at length for that reason. Its general effect is stated in the cases of The Baltimore, 8 Wall. 377, 391; Costs in Civil Cases, 1 Blatchf. 652; District Attorney’s Fees, Id. 647;, The Liverpool Packet, 2 Spr. 37; Hathaway v. Roach, 2 Wood. & M. 63; Jerman v. Stewart, 12 Fed. Rep. 271, and other cases there cited.
The general result was that, except during a short time of temporary statutes making partial regulations, and some statutes applying to special cases, the federal courts were left to follow the state practice in cases at law, and the general equity practice in cases in that court until this act of 1853 was passed. One of these temporary statutes is, however, of great value in support of the views here .expressed. Mr. Justice Nelson says that long after it expired it continued, without objection, to govern the taxation of costs, until the act of 1853'was passed. It was, no doubt, the model used in constructing the act of 1853. Its first sections were confined to regulating costs in admiralty cases. The “counselor or attorney” was allowed “the stated fee for drawing and exhibiting libel, etc., in each cause three dollars; drawing interrogatories three dollars; and all other services in any one cause three dollars.”
It then proceeded to enact:
“Sec. 4. That there be allowed and taxed in the supreme, circuit, and district courts of the United States, in favor of the parties obtaining judgments therein, such compensation for their travel and attendance and, for attorney’s and counselor’s fees, except in the district courts of admiralty and maritime jurisdiction, as are allowed in the supreme or superior courts of the respective states.” Act 1793, c. 20, § 4, (1 St. at Large, 333;) Act 1796, e. 11, (Id. 451.) ■
The act of 1853 was intended, in my judgment, to express precisely what this section of the act of 1793 enacted as to attorney’s and counselor’s fees, but to fix the amounts in all cases of law, equity, and admiralty, to confine its operation to final costs, and exclude any
It must be conceded that the act is, in respect of the fees for attorneys, somewhat obscure, and the decisions have not been uniform. In Peterson's Ex’rs v. Ball, 1 Cranch, C. C. 571, (A. D. 1809,) when, however, the act of 1796, above referred to, had expired, it was held that wdiere a bill was dismissed after answer "filed, a lawyer’s fee should he taxed. The court cites a Virginia statute, the effect of which 1 cannot ascertain. In Dedekam v. Vose, 3 Blatchf. 77, (S. C. Id. 153,) it was held that the attorney’s fee could not he allowed upon interlocutory or collateral proceedings, and only upon an actual contestation of the case upon the merits, and that it could not be taxed twice in the same case,—first on final decree against the principal, and afterwards on another decree against the sureties. Nor can it he taxed more than once when a case has been twice heard, as before and after appeal. Troy Factory v. Corning, 7 Blatchf. 16.
In Hayford v. Griffiths, 3 Blatchf. 79, an appeal in admiralty was dismissed before the hearing, but on motion of the adverse party, and it was held the docket fee was taxable “on a final disposition of a cause on the calendar,” which is precisely the ruling I make in these cases. There was no “hearing” in any sense in which these cases vrere not heard; certainly not any “final hearing” except in the same sense these cases were finally heard.
In Goodyear v. Osgood, 13 O. G. 325, it was held that “wherever a final decree is entered by the court in an equity cause, after replication filed, for the purposes of taxation of the docket fee this is to be considered as the ‘final hearing’ referred to in the Revised Statutes, § 824.” The cases were dismissed on motion of the complainants after an interlocutory decree in another case settling the rights of the parties. As I understand the case, it supports the ruling made here, since the replications in these cases are, for reasons already stated, considered as filed; and the disposition made of that ruling of Judge Shepley’s by the adverse case of Coy v. Perkins, 13 Fed. Rep. 111, is not quite satisfactory. It certainly cannot be material what motive influenced the plaintiff to dismiss,—whether because of an interlocutory docreo in another case, or for other reasons. If he dismissed voluntarily, as he certainly did in the two eases mentioned in the report of the facts, which were not included in the stipulation as to the case against Davis in which the interlocutory decree was rendered, there was no “final hearing” as those words are interpreted in Coy v. Perkins, supra.
The construction placed on the opinion in Goodyear v. Osgood, supra, by Coy v. Perkins, supra, seomé to be that if the plaintiff dismisses because he concludes for himself he cannot succeed, the docket fee is not taxable; but if the court has convinced him by an interlocutory
The opinion by Mr. Justice Clifford mentioned in the report of Goodyear v. Osgood, supra, and in Coy v. Perkins, supra, was oral, and has never been, the clerk at Boston informs me, reported. We cannot say on what reasoning he ruled, nor precisely the state of the case., It only appears that the bill was dismissed “by agreement of parties, with costs,” and he held the docket fee not taxable.
In The Bay City, 3 Fed. Rep. 47, the fee was held taxable on a dismissal in admiralty after proof commenced, but without any judgment by the court. There the accidental circumstance that proof had been heard constituted “a final hearing,” but the court cited Hayford v. Griffiths, supra, somewhat approvingly. In Strafer v. Carr, 6 Fed. Rep. 466, and in Huntress v. Epsom, 15 Fed. Rep. 732, it was héld that when there was more than one “trial before a jury” only one docket fee is taxable, because, as was said by Judge Swing, until there is a verdict and judgment the case is not finally disposed of, and it is only on such a disposition that the right to tax this item of costs accrues. In other words, interlocutory costs for the attorney’s docket fee are not allowed; yet, on the strict letter of the statute, there was “a-trial before the jury,” even where there was no verdict; but it was held upon the whole statute that one fee only is to be taxed, and this on the final disposition of the case. The learned judge says the fee is not given “in proportion to the labor performed,” and it seems to be introducing a very uncertain element of construction into the statute;to cast about and see what was done in each cage, and the character of the performance, in order to determine whether there was a final hearing or not. It would impose on the taxing officer the necessity of taking proof aliunde the record to see how much of a hearing there was, what counsel did, and what the court did, and such other matters of fact as would enable him to determine whether there was a “final hearing;” and in the end, as the adjudicated cases show, there would be great disagreement as to what constituted a “final hearing,” and the effect of varying circumstances .on the .question,
The cases of Coy v. Perkins, supra, and Yale Lock Co, v. Colvin, 14 Fed. Rep. 269, are directly opposed to those views, and hold that where the plaintiff voluntarily dismisses his bill this docket fee is not taxable; but I am constrained, for the reasons given, to respectfully dissent from that ruling, and adopt that made in the other cases which have been cited holding the foe taxable.
This conflicting and indecisive attitude of the adj udged cases, and the fact that the question has often troubled the taxing officers of this court, induced me to take the first occasion when if has been presented here for judicial decision to give the subject a careful investigation, and this must be my apology for the undue length of this opinion.
Nothing less than a conviction, founded on thorough consideration, would justify my judicial judgment when it dissents from any of my brethren who have adjudicated the question.
Overrule the motion,
