32 F. 682 | U.S. Circuit Court for the District of Eastern Missouri | 1887
(orally.) In the case of John H. Williams against Jasper N. Morrison, a question was presented to me yesterday relative to the taxation of costs in that case. The question is whether the plaintiffs’ counsel is entitled to one docket fee of $20, or to two docket fees of $20 each.
Under sections 823, 824, Rev. St. U. S., plaintiff’s counsel claims that two docket fees should be taxed. I find that in the case of Dedekam, v. Vose, reported in 3 Blatchf. 77, and decided by Judges Nelson and Betts, it was ruled that when a case had been on the docket at one term, and was continued and tried at a second term, only one docket fee of $20 should be allowed. In the same case, before Judge Betts, reported in 3 Blatchf. 153, after there had been a final hearing and decree in the case, and a docket foe of $20 taxed, there was a supplementary proceeding. (it being an admiralty suit,) in which the libelant asked an order against the sureties in the stipulation to compel them to pay into court the amount of the stipulation, and a docket fee of $20 was taxed by the clerk on account of the hearing of the motion, which the court struck out, saying that the law allows but a single docket fee, and that on final hearing. Then, in the case of Iron & Nail Co. v. Corning, 7 Blatchf. 16, decided by Judge Nelson, it was remarked that a docket fee of $20 was “the highest compensation allowed to a solicitor, and that it can be allowed hut once;” citing the case of Dedekam v. Vose, 3 Blatchf. 77 and 153. This last case, however, (the Iron & Nail Co. v. Corning,) was an equity case, and the report does not show whether there had been more than one final hearing. The inference is that a second docket fee of $20 had been claimed in the case on account of a trial of some motion or proceeding incidental to the case, and not on account of a final hearing. Of course, in that event, the docket fee of $20 claimed was not within the language of the statute, which only allows the charge on final hearings in equity and admiralty causes, and it was properly stricken out for that reason. The same remark may be made respecting the claims for a docket lee in the case of Dedekam v. Vose, 3 Blatchf. 77 and 153. In neither of those instances was a claim made for a docket fee on account of a final hearing in the case. The remark, volunteered in each instance above cited, that a docket fee could be allowed but once in a cause, seems to have been unnecessary.
In the case of Schmieder v. Barney, decided by Judge Blatchford when circuit judge, and reported in 7 Fed. Rep. 451, it appears that there were three trials. The first one resulted in a verdict for the plaintiff, and the other two resulted in a verdict for the defendant, and it was held in that case that a docket fee should be taxed for a trial whether the verdict stands or is set aside, and that defendant’s attorney in that, case was entitled to a docket fee of $20 for each trial, the defendant be
I was at first disposed to take the view that this case was distinguished from the case of Schmieder v. Barney, in that there were cross-judgments in this case, the plaintiff not having succeeded in maintaining his claim to all the property for which he sued. I think, however, that that view is inadmissible. The logical result of that view of the case would be that in this instance there was no. prevailing party, and that no docket fee could be taxed. I think in a law case, where there is a final trial before a jury, a docket fee is always to be taxed, and that the court must determine who is the prevailing party. In this case, as the plaintiff recovered seven-eights of the property claimed, and as the defendant contested his right to any of the property, the plaintiff should bo esteemed the prevailing party to the same extent as if he had sued for $800, and had only recovered §700. A docket fee should be taxed for each trial, and it will be so ordered.
