128 F. 174 | U.S. Circuit Court for the District of Massachusetts | 1904
The complainant disputes items i, 12, 14, 16, and 17 of the clerk’s taxation of costs. Objections made to items 3, 4, 5, 6, 7, 8, 9”, and 10 were not pressed in argument, and are taken as withdrawn.
Item 1. Travel and attendance. The taxation is sustained upon the authority of Nichols v. Brunswick, 3 Cliff. 88, Fed. Cas. No. 10,239.
Item 12. Attorney’s fee for depositions taken. Each case involved the same question of law and fact, and depended upon the same evidence. The plaintiff was the same in all three cases; the defendants in 951 and 1,223 were different. In 1,224 the party defendant in 951 'was joined with others. A11 attorney’s fee for each deposition taken was taxed in each of the three cases. The taxation is sustained on the authority of Wooster v. Handy (C. C.) 23 Fed. 49, 63; Archer v. Hartford Ins. Co. (C. C.) 31 Fed. 660. In the first case it was said : “Each of the depositions allowed for was taken and admitted in evidence in each suit in which it was entitled. It was for the parties to agree that the fee should be taxed but once for the group of cases, if that was to be the rule. Otherwise the fee was taxable, because the deposition was taken in each case, and admitted in evidence in each case, although the writing was not repeated for each case.” The complainant contends that an agreement to tax but once was actually made in the case at bar. hut the evidence submitted does.not sustain the contention.
item 14. Clerk's fee for supervising record. The taxation is sustained under paragraph 7 of rule 23. For the validity of the rule, see Jordan v. Agawam Co., 3 Cliff. 239, Fed. Cas. No. 7,516; U. S. v. Sanborn (C. C.) 28 Fed. 299; Tesla El. Co. v. Scott (C. C.) 101 Fed. 524. The record was actually printed but once. The clerk’s fees have been 'taxed as for one record only, and the amount divided equally among the three cases. There can be no doubt that the amount thus taxed is that fixed by the rule. Whether it should have been taxed in one case or divided equally among three need not now be considered, as the result here is the same.
Item 16. Each witness who testified, having been sworn in each case, was allowed three witness fees, as having testified in three cases.
Item 17. A special examiner was allowed three fees for each witness sworn and for each exhibit marked. As each witness was sworn and each exhibit was marked in each case, the allowance was proper. The examiner was also allowed triple fees for. attendance and for taking each deposition, which he certified in each- case. The fair intent of section 847, Rev. St. [U. S. Comp. St. 1901, p. 652], in general accordance with which these fees were here computed, will be carried out if the special examiner is allowed a fee of $3 a day for attendance in only one case, and is allowed for the depositions certified and filed in the second and third cases at the rate of 10 cents for each folio instead of 20. The taxation is modified accordingly. The questions concerning the multiplication of fees have not b'een passed upon hitherto in this district. In all other respects the taxation conforms to the established practice. See, also, Edison Co. v. Mather Co. (D. C.) 63 Fed. 559. If there be anything to the contrary in Tesla Co. v. Scott (C. C.) 101 Fed. 524, I prefer to follow the uniform practice in this circuit, sustained by that of the Second .Circuit, rather than a decision which reverses the former practice in the Third Circuit. The clerk taxed to the plaintiff 10 cents a folio for a copy of the evidence furnished to the defendant. Concerning this item I have more doubt, but have decided not to overturn a long-established practice.
, Defendant’s counsel objects' to the disallowance of the witness fee paid to him. No fee in such case has ever been allowed in this district, and the disallowance is approved.
