Sedlacek v. Bryan

| U.S. Circuit Court for the District of Eastern New York | Dec 8, 1911

CHATF1EUD, District Judge.

The defendant has appealed from a refusal by the clerk to tax an item of $58.75 paid by him for the taking of testimony upon a jury trial resulting in a verdict for the defendant.

[ 1 ] There being no official stenographer, one-half of the charges for taking the testimony is usually borne by each party, if an exact record is wished. In case the minutes are written out, the party securing these minutes pays the additional charge for transcribing.- Where this has been done by agreement, the successful party taxes his share for taking the testimony against the unsuccessful party, and if the unsuccessful party wishes a record for appeal he is bound to secure that for himself.

[2] In the present case the plaintiff refused to undertake the obligation for stenographic services; it being stated to the court that the plaintiff would not be able to appeal if not successful. The circumstances sufficiently showed that the plaintiff’s attorneys were -acting in good faith and that their refusal was proper under the circumstances.

The defendant determined that he wished the record taken by a stenographer, even if the plaintiff was unwilling to do the same, and the stenographer was present and took notes throughout the trial. A ruling upon certain evidence made it necessary for the plaintiff to obtain some part of the record. The plaintiff’s attorneys thereupon independently ordered and p'aid for writing out a copy of the pages which they needed.

1 The charge for taking down those pages, viz., $17.50, was divided (one-half being paid by the plaintiff, and the other half, $8.75, being charged to the defendant). The remaining testimony amounted (for the taking down alone) to the sum of $50, and the defendant has asked that the two items charged to him, viz., $8.75 and $50, be taxed as if an agreement had been entered into by the plaintiff at the outset of the trial.

This would in effect make the employment of a stenographer compulsory,- and would be equivalent to a refusal by the court to hear a case unless the testimony were taken in shorthand. Even if this be generally advisable, it would not seem that litigants should be compelled by the court to undertake this expense, unless the question be disposed of at the beginning of any case in which either party is • unable or unwilling to employ a- stenographer. The question could only arise in cases where the matter could be brought to thé court’s attention at the outset. Inasmuch as the Congress has not deemed it proper to have the testimony in the federal courts, generally, taken down and transcribed at the public expense, but has considered that this should be an item’to be borne by the parties who wished to litigate,' and inasmuch as parties should be given the right to litigate without unnecessary hardship and expense, it would seem improper to rule that any party, who might be willing, able, and solicitous enough as to the possibility of appeal or future use of testimony to wish the exact phraseology preserved, could (without presenting the facts to the court and obtaining.a direction) insist upon putting the other party, to an expense which he did not’wish to incur.

The action of the clerk will be upheld, and the appeal from the refusal to tax the item is dismissed. ’