The fact that the consent dismissal was “with costs” does not avoid the necessity of determining of what items, in such circumstances, costs consist.
Under R. S. § 824 (28 USCA § 572), it seems settled in this district that, the cause having been dismissed without trial, a docket fee cannot be taxed. The Dwinsk (D. C.) 227 F. 958. Cf. Peerless Light Co. v. Leviton (D. C.) 247 F. 606.
Apart from the somewhat ambiguous phraseology contained in the stipulation when the depositions were taken, where, as here, they were not put in evidence, the rule in this district is that “disbursements with respect to said depositions” cannot be included in the bill of costs. The Persiana (D. C.) 158 F. 912.
No decision to the contrary has been called to my attention by the claimant.
Motion for retaxation, so as to eliminate the docket fee and the disbursements, granted. Settle order on notice.