12 F. 271 | U.S. Cir. Ct. | 1882
The act of congress of February 26, 1853, c. 80, (10 St. at Large, 161; Rev. St. § 823 et seq.,) makes no provision for fees or compensation to other officers or persons than attorneys, district attorneys, clerks of the United States courts, marshals, commissioners, witnesses, jurors, and printers. The next chapter of the Revised Statutes regulates the subject of evidence, and provides for taking depositions where that mode of proof is permitted; but while section 863 authorizes any judge of any court of the United States,
I have been unable to find any ease furnishing a guide in taxing costs as to these other officers for taking depositions. It is to be observed that a justice of the peace is not one of the officers designated to take depositions by these statutes. He may be empowered by a dedimus potestatem, as any one may, but he is not otherwise authorized. Under our state practice no dedimus potestatem is required, though one may issue; and all the parties have to do is to give the proper notice or file interrogatories, and the deposition may then be taken before one of the designated officers, according to the requirements of the statute, and he is entitled to a fee of only one dollar in any and all cases. A justice of the peace is one of the officers authorized by the state practice. Tenn. Code, (T. & S.) §§ 3836, 3843, 3844, 3847, 3865, 4551, subsocs. 13, 4549, subsec. 20.
Whether this state practice is a legal mode of taking proof in this court or hot, nearly all our depositions, as a matter of fact, are so taken, it being an almost universal and commendable custom to agree as to the manner of taking, as was done in this case; and since I have been on the bench I have never known a motion to suppress depositions for any irregularity in taking them; hence the importance of properly determining the costs to be taxed in such cases. The state fee of one dollar is so inadequate that an officer will rarely do more than swear the witness where the deposition is taken without
In this case the justices of the peace are officers in the state of Mississippi, and I doubt if they are intended to be restricted in this matter to the fees prescribed for like officers in this state. The Code says nothing about the compensation of officers taking depositions in another state, and the compensation of one dollar is found only in the chapters prescribing the fees for clerks, justices of the peace, and other officers in Tennessee. I am by no means certain that our state courts would hold that no more should be allowed than our own statutes allow here, or that they woxild not hold that whatever reasonable fees were allowed for the services by the laws of the state where the depositions were taken might be charged as costs in the case. I am informed by the taxing officers of this city that it is usual to tax whatever reasonable fees are charged in such cases, and that by a sort of common understanding, though not regarded as strictly legal, such is the rule of taxation, controversies being adjusted by agreement, and that there is not known to be any adjudicated case settling the practice. This accords with my own experience in the state courts of this city. I am not satisfied, therefore, that according to the state law these officers would be entitled to only one dollar each for the two depositions taken by them, though I do not feel constrained to decide that point.
Prior to the above-mentioned act of congress of 1853, regulating fees, they were taxed according to the state practice as adopted by rule of court or constant usage, and where the state laws happened to be silent as to the few items not provided for, the method was to refer to some allowance in the state court “for a service corresponding with the one in this court, and to tax the costs accordingly.” Re Costs in Civil Cases, 1 Blatchf. 652; Pomroy v. Harter, 1 McLean, 448; Hathaway v. Roach, 2 Wood & M. 63; Ex parte Paris, 3 Wood & M. 227; U. S. v. Ringgold, 8 Pet. 150.
But, while this was the rule of taxation, if the state legislature should abolish a previously-existing allowance it was not binding on the federal courts., Re District Attorney's Fees, 1 Blatchf. 647.
I do not wish to depart from the decisions which hold that where congress has legislated and allowed no fees, none can be allowed by the courts on the doctrine of reasonable compensation, and where this plain statute says that the officers enumerated shall receive certain fees and none other, that the courts cannot enlarge them. The Baltimore, 8 Wall. 377; Jones v. Schell, 8 Blatchf. 79; Dedekam v. Vose, 3 Blatchf. 153. But here it is obvious that the principle does not apply, because these officials are not mentioned in the act of congress regulating fees, and the omission to provide for them cannot be taken as an intention to deny them all compensation. Nichols v. Brunswick, 3 Cliff. 88. In Etheridge v. Jackson, 2 Sawy. 598, Judge. Deady takes the distinction between the right to costs and the mere mode of taxing them. In trials at law the former depends on the laws of the state where there is no act of congress, but the latter on the practice of the federal court itself. To the same effect are Field v. Schell, 4 Blatchf. 435, and Burnham v. Rougely, 2 Wood & M. 417.
These decisions all show that from the first congress has intended that the prevailing party should be allowed his reasonable costs, and although the act under consideration has prescribed certain fees for certain officers, it has omitted to prescribe for others, and the question is whether we shall continue to look to the state law for our analogies in these cases, as we did before that act, or now look to that act itself where it furnishes the analogy. I see no reason, if congress says a clerk or commissioner shall receive 20 cents a folio for taking a deposition, for holding that if a judge, justice of the peace, notary public, or other magistrate takes it he shall receive less. We never looked to the state law of costs, as I have shown, as rules of positive law for our obedience; no act of congress requires us to do so as to
I hold, therefore, that the proper fees to be taxed for the officer taking depositions in this court are the same fees allowed to our clerks and commissioners for similar services, and this no matter how or where they are taken. The same principle applies as to- the fees taxed to the chancery court clerk for the transcript, though there is no embarrassment as to that item because both the Revised Statutes and the Code of Tennessee prescribe the same fee of 10 cents a folio of 100 words for transcripts. Rev. St. §§ 828, 983; Code, (T. & S.) 4551, (35.) But the plaintiff should not be allowed for both the transcript of the final decree and the full transcript of the entire record. Counsel did not remember precisely how both came to be used, nor does the court, except that upon the ruling made upon the exception to reading only the final decree the plaintiff produced a full transcript. It may not have been necessary, but the exception of the defendants made it prudent, and they cannot now complain. I think, however, it was unnecessary, and the fees of the full transcript will be taxed, but not the other.
A further objection is made that as to these costs there is no affidavit attached of the party, or some other person, having knowledge of the facts that the services charged have been actually and necessarily performed as therein stated, according to the requirements of the statute. Rev. St. § 984. It is a mistake to suppose that this applies only to government cases. It is in the original act of 1853, and in the Revised Statutes, by its terms is applicable to all cases, and has been enforced as to fees for taking depositions de bene esse,- and where the taxation is claimed for witness fees, under section 983-of the Revised Statutes, the affidavit must show that they have been actually paid. Beckwith v. Easton, 4 Ben. 357. These sections of the Revised Statutes, and the section of the original act, do not in terms include officers taking depositions unless they be clerks of the United States courts or commissioners of the circuit court; but inasmuch as there is no special legislation as to others, and we must refer to these provisions by analogy, as has been shown, for the purposes
The objection made to the attorney’s foes for depositions is not well taken. They were used under an agreement of counsel that they should be “read and used in evidence on the trial” in this case. The statute gives to the attorney, “for each deposition taken and submitted in evidence in a cause, $2.50.” Rev. St. § 824. This does not mean that the depositions shall be formally taken, and the fees allowed only for such as are formally taken, but for those that are
The parties here agreed, for their convenience, to use depositions already taken, and, to all intents and purposes, they stood in all respects precisely as if taken in the usual way, except that they saved the costs of retaking. This fee is not a part of the cost of taking the deposition, but, like the docket fee, is an allowance to the attorney as taxable costs for his professional services in the case, and unless the agreement of the parties waives it, it is as much taxable as any other costs.
Overrule the objections and conform the taxation to the principles here laid down.