Walsh's Adm'x v. Joplin & P. Ry. Co.

• Citation: 219 F. 345
• Parties: WALSH'S ADM'X v. JOPLIN & P. RY. CO. THEOLETE v. SAME.
• Decision Date: 01 January 1914
• Court: U.S. District Court — District of Kansas

219 F. 345

WALSH'S ADM'X v. JOPLIN & P. RY. CO.

THEOLETE v. SAME.

United States District Court, D. Kansas, Third Division.

January 1, 1914

Wm. P Dillard, of Ft. Scott, Kan., for plaintiffs.

Edward C. Wright, of Kansas City, Mo., for defendant.

VAN VALKENBURGH, District Judge.

These cases were commenced in the district court of Crawford county, Kan. The defendant brought them to this court upon petition for removal. Upon appropriate motions they were remanded to the state court at defendant's costs, but no order was made at the time with reference to the amount of such costs, or with reference to attorney's docket fee. Plaintiffs have filed motions to retax the costs, contending that an attorney's fee should be taxed against the removing defendant in each case. It is particularly desired that a rule should be made establishing the practice in this regard for this district.

Section 37 of the Judicial Code makes the following provision:

'If in any suit * * * removed from a state court to a District Court of the United States, it shall appear to the satisfaction of the said District Court, at any time after such suit has been * * * removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said District Court, * * * the said District Court shall * * * remand it to the court from which it was removed, * * * and shall make such order as to costs as shall be just.' Under the heading 'Fees of Attorneys, Solicitors and Proctors, ' section 824 of the Revised Statutes (Comp St. 1913, Sec. 1378) provides what attorney's docket fees may be taxed as costs. The paragraphs here applicable are the following:

'On a trial before a jury, in civil or criminal causes or before referees, or on a final hearing in equity or admiralty, a docket fee of twenty dollars: Provided, that in cases of admiralty and maritime jurisdiction, where the libelant recovers less than fifty dollars, the docket fee of his proctor shall be but ten dollars.'

'In cases at law, when judgment is rendered without a jury, ten dollars.'

It would seem that the discretion lodged in the court by section 37 of the Judicial Code, if not absolutely limited by the provisions of section 824, should at least adapt itself, so far as practicable, to the spirit of those provisions. Five cases in which this matter has been up for consideration have been called to the attention of the court. They disclose some contrariety of opinion; but to my mind little difficulty should be experienced in arriving at a rule both just and equitable, and well within the power of the court expressly conferred by statute.

In Smith v. Western Union Telegraph Co. (C.C.) 81 F. 242, Judge Baker refused to allow a docket fee, in any amount, upon the ground that such action accorded with the practice in the entire Seventh circuit, and that a practice of the court so long continued ought not to be changed. In all the other cases cited a fee was allowed.

In Josslyn v. Phillips (C.C.) 27 F. 481,...