270 F. 294 | N.D. Ga. | 1921
Before this case at law was ready for trial the parties agreed that a verdict in plaintiff’s favor for .$25 should be taken. This was stated in open court; a jury was irnpan-neled and directed to sign a verdict, no witnesses being called or sworn. The clerk entered in his journal, “Consent verdict.” Judgment was thereupon signed for the amount of the verdict and costs. In taxing the costs, the clerk included $20 as a docket fee for the plaintiff’s attorney. On a motion to retax, this item of costs is objected to.
The precise question here is whether a verdict taken by consent is “a trial before a jury.” No direct authority has been presented. 'It was held, however, that a disposition by consent decree of an admiralty case was not “a final hearing,” to make which there must have been a submission to the court for decision of some question of law or fact. The Dwinsk (D. C.) 227 Fed. 958; Howe v. Shumaway, Fed. Cas. No. 6774. It was said in Merritt, etc., Wrecking Co. v. Catskill (D. C.) 112 Fed. 442, on authorities cited therein:
“Nor would tlie obtainment of an order pro confesso necessarily entitle tlie complainant to a docket, fee. It would be requisite that a bill should, be decreed by the court after an examination to determine whether the facts entitled the complainant to the relief demanded. * * * The test seems to be whether something more than merely formal action of the court is necessary, both in equity and in admiralty.” • ;
_ _ The words “a trial before a jury” were construed in Howler v. Chicago Co.. (C. C.) 166 Fed. 828, and held not to apply to a case where a trial was begun and a settlement had which stopped the trial; no verdict being rendered. It was said that to constitute a trial there must be both an examination and hearing of evidence, and at least a submission of the question to the jury, if not, indeed, a verdict thereon. I am' persuaded that the word “trial,” like the word “hearing,” connotes a contest, or certainly something more aggressive than the mere execution of a consent. Where, as in this case, the consent precedes the calling of the case for trial, there was no necessity for the plaintiff to engage the services of an attorney for the trial, and a considerable motive to settlement is often the saving of further costs.
The item contested is disallowed.