182 F. 880 | U.S. Circuit Court for the District of Middle Pennsylvania | 1910
The plaintiffs recovered a verdict in this case, on which, by direction of the court, judgment was entered (151 Fed. 321); but, on error to the Court of Appeals, this was reversed and judgment given for the defendant (159 Fed. 383, 86 C. C. A. 383); and on application to the Supreme Court a certiorari was denied (209 U. S. 551, 28 Sup. Ct. 761, 52 L. Ed. 922); upon which the mandate from- the Court of Appeals was sent down and filed here June 24, 1910. The case having thus been finally disposed of on the
•Costs taxed on mandate.:. $1,164 25
■Defendants’ bill of costs... 218 00
Costs to clerk on certifying record to 'Court of Appeals. 815 50
Attorney fee... 20 00
Total ...... $2,277 75
This statement was made the basis of a settlement between the parties ; the plaintiffs, as the losing party,, paying the amount, and the defendants giving a receipt in full.
At the time the case was taken to the Court of Appeals, the clerk of this court, after certifying the record, asked, and was paid by the •defendants who took the case up, the sum of $815.50; this being calculated! oh 8,155 folios, at 10 cents a folio, the rate which the clerk had been accustomed to charge. And, upon payment being made by the defendants, he accounted to the government therefor. Upon a recent examination of his accounts, however, by a special representative from the Attorney General’s office, it was held that- he should have charged 15 cents a folio, and that he was liable in consequence for the difference, $407.75, with which he was accordingly surcharged. 'On having his attention called, in this way, to the mistake which he had madle, the clerk gave notice to counsel for the respective parties that, on a day certain, the costs would be retaxed by him. And on the day fixed, after fully canvassing the matter, the clerk corrected, his' former entry, and retaxed, at $1,223.25, the fees due him for certifying the record, crediting .$815.50, the amount received, and leaving $407.75 still due. This item he taxed! against the plaintiffs, as the losing party, and that is the subject of the present appeal.
, It is not seriously disputed that, provided he had done so when the writ of -error was taken, the clerk was authorized to charge at the rate of 15 cents a folio for certifying the record, and that he could have exacted it of the defendants, for whom the service was rendered, before the record was filed; the plaintiffs, as the losing party, being answerable for it in the end. This rate was recognized as correct by this court in Thornton v. Insurance Company (C. C.) 125 Fed. 250, and is sustained in McIlwaine v. Ellington (C. C.) 99 Fed. 133, and Mohrstadt v. Mutual Life Insurance Company (C. C.) 145 Fed. 751. See, also, 9 Compt. Dec. 28. It is true that in Cavender v. Cavender (C. C.) 10 Fed. 828, it is held to the contrary that, in certifying the record on a writ of error or appeal, the clerk is merely making ,a transcript or copy, for which he is entitled to only 10 cents a folio, ¡and it was with that idea in the present instance that the original charge, at that rate, was made. But, as shown by the authorities cited, .that is not the prevailing view. The account of the clerk, in making .a return to the writ, is regarded as essentially the “making of a record” within the meaning of the statute (Rev. St. § 828 [U. S. Comp. St. 1.901, .p. 635]), arid not merely the transcribing or .copying of it, •entitling him to a higher rate, and that ruling will be adhered to here.
The clerk also, whatever his fees were, was entitled to demand them ■in advance, having to account for them to the government, whether
The right to claim these costs of the plaintiffs, as the losing party, however, stands on a different ground. By the reversal of the judgment they are cast for the costs, and this entitles the clerk to look to them for payment, to the extent that they are still due. It is true that, on his certified statement, the parties settled the case beween themselves, and the plaintiffs paid to the defendants the amount there called for, for certifying the record. But the mere fact that such' a settlement was made, even though it was based on the statement given by the clerk, does not preclude him from showing his mistake, and! obtaining what is his legal due. The plaintiffs, no doubt, would be protected, if they were prejudiced by disturbing this settlement. But, except for the unpleasant experience of- being called on to pay more, after supposing that they had reached the end, it does not appear that this would be the case.
The clerk, ’ also, having a right to these fees, is entitled, undler the Pennsylvania practice, to enforce their collection by judgment and execution in the name of the defendants, as the successful party, against the plaintiffs, as the losing party, of which, whatever may have passed between them, he cannot be deprived. In Ranck v. Hill, 3 Pa. 423, the plaintiff recovered a verdict against the defendant, which carried $58.65 costs. These costs never having been paid to the officers of the court, to whom they were due, a scire facias was issued at their instance, in the name of the plaintiff, to revive the judgment and have execution thereon. The defendant pleaded payment, and put in evidence a receipt in full from the plaintiff’s executor, which he had obtained. The court below charged that the plaintiff and defendant could not, without the consent of the officers, to whom, by way of fees, the costs belonged, discharge the defendant from his liability to these officers and oblige them to look to the plaintiff alone, thus depriving them of a part of the security which they had, for the recovery of which from the defendant they were entitled to the use of the plaintiff’s name. And this, on error, was affirmed.
“The officers’ fees,” it is said, “are part of the plaintiff’s costs, which he is supposed to have paid to them, and which he collects ostensibly for himself, but actually for them, by his execution. Such has been the practice from the foundation of the state as a province. They are seldom, perhaps never, paid by-the plaintiff in the first instance; but they are subsequently paid by the sheriff directly into their hands. Cf.
So in Ellsbre v. Ellsbre, 28 Pa. 172, an award of arbitrators was secured by the plaintiff, and, before the time for an appeal had expired, the defendant filed a receipt by .the plaintiff, acknowledging satisfaction in full for the debt, interest, and costs. But the fees due to the sheriff, prothonotary, and attorney, amounting to $20.79, not having been paid, judgment was entered by them, and an execution issued in the name of the plaintiff, against the defendant, therefor. The court below struck this execution off. But this was reversed, the Supreme Court holding that the legal effect of the receipt given by the plaintiff was limited to the debt, interest, andl such costs as belonged to him; and that, as this left the award unsatisfied in part, judgment was properly entered on it for the unpaid costs, to enforce which execution rightly went out.
In Howard Building Association v. Philadelphia & Reading Railroad, 102 Pa. 220, also, it is said:
“The plaintiff in the judgment, whether he be plaintiff or defendant in the action, collects the officers’ fees, not for himself, unless he has paid the officers, but as trustee for the officers who rendered the services. * * * Whichever party to the action recovers, the fees of the officers for services rendered therein become a part of the judgment, and if not paid the officers may collect them, by execution, of the defendant in the judgment.”
See, also, Musser v. Good, 11 Serg. & R. (Pa.) 247; United States v. Cigars (D. C.) 2 Fed. 494; Aiken v. Smith, 57 Fed. 423, 6 C. C. A. 414.
It is said, however, that the clerk had no authority, of his own mo- ' tion, to retax costs in his own behalf. “Costs,” it is urged, belong to the parties, as compensation for the expense of the litigation, into which they have been forced, and are to be- distinguished from “fees,” which the officers of the law are entitled to charge for services invoked. Ramsey v. Alexander, 5 Serg. & R. (Pa.) 344; Musser v. Good, 11 Serg. & R. (Pa.) 247; Beale v. Commonwealth, 7 Watts (Pa.) 183, 186. A taxation or retaxation of costs, according to this, can only therefore be made at the instance of a party, and must be confined to what are strictly such. But it is not necessary that unpaid fees shall be formally taxed as costs in order to support an execution for them. It is enough if they are noted of record, or on the writ. Irwin v. Hanthorn, 6 Pa. Super. Ct. 165; Becker v. Goldschild, 9 Pa. Super. Ct. 50; Beale v. Commonwealth, 7 Watts (Pa.) 183, 186. The clerk therefore was not required to do more than that here, and was thus, in any event, clearly within his rights. There must be some way of determining in binding form the fees that are due to the officers of the court; and the usual and orderly method is for the clerk, in the first instance,' to ascertain and enter them on the record, subject to review by the court on appeal. Harger v. Commissioners, 12 Pa. 251; Irwin v. Hanthorn, 6 Pa. Super. Ct. 165. As so
The appeal is dismissed', and the taxation as made by the clerk is -confirmed.