American Bank Protection Co. v. City Nat. Bank of Johnson City

• Decision Date: 01 February 1913
• Docket Number: 1,475.
• Citation: 203 F. 715
• Parties: AMERICAN BANK PROTECTION CO. v. CITY NAT. BANK OF JOHNSON CITY.
• Court: U.S. District Court — Eastern District of Tennessee

203 F. 715

AMERICAN BANK PROTECTION CO. v. CITY NAT. BANK OF JOHNSON CITY.

No. 1,475.

United States District Court, E.D. Tennessee, Northeastern Division.

February 1, 1913

Paul &amp Paul, of Indianapolis, Ind., and Webb & Baker, of Knoxville Tenn., for complainant.

Harr &amp Burrow, of Johnson City, Tenn., for defendant.

SANFORD District Judge.

1. The first ground of the motion is to retax the costs of various witnesses aggregating $109.00, the specific objection being that these witnesses voluntarily traveled to the place of examination and testified before the officer taking the testimony, without having been placed under subpoena.

I am of opinion, however, that the mere fact that the witnesses had not been summoned, is not a ground for disallowing as costs their per diems and mileage otherwise taxable as part of the costs.

The question whether the per diem and travel fees of witnesses who attend voluntarily in a Federal Court, without subpoena are taxable as part of the costs under section 848 of the Revised Statutes (U.S. Comp. St. 1901, p. 654) and earlier statutes, has been a question as to which there has been a direct conflict of opinion, as appears from the cases on this subject collected and digested in Gunckel's Costs in Federal Courts, Sec. 25, p. 97. Prior to 1886 the weight of opinion appears to have been about evenly divided. In that year, however, it was held in United States v. Sanborn (C.C.) 28 F. 299, in a carefully prepared opinion by Gray, Circuit Justice, in which Colt, Circuit Judge, concurred, and after a full and elaborate review of the authorities, that under section 848 of the Revised Statutes the mileage of witnesses who had attended a trial without subpoena should be taxed as part of the costs. Since the publication of this opinion it appears that the case of Lillienthal v. Railway Co. (C.C.) 61 F. 622, is the only one in which it has been held that the fees and mileage of witnesses who attend voluntarily without subpoena are not taxable as costs, and it furthermore appears that in reaching this conclusion Ross, District Judge, who delivered the opinion, felt constrained, without regard to his individual views, to adhere to the construction that had been previously put upon the statute by Sawyer, Circuit Judge, in two earlier reported cases in the same circuit.

On the other hand it appears that since the publication of the opinion in the Sanborn case, it has been uniformly held-- except in the Lillienthal case-- that the per diems and travel fees of witnesses who attend in good faith, should not be disallowed, if otherwise taxable, merely because the witnesses were not subpoenaed, but attend voluntarily at the request of one of the parties. Cahn v. Monroe (C.C. Mich.) 29 F. 675 (Severens, J.); The Vernon (D.C. Mich.) 36 F. 113, 116 (semble, Brown, J., afterwards Mr. Justice Brown); The Syracuse (C.C.) 36 F. 830; Eastman v. Sherry (C.C.) 37 F. 844; Burrow v. Railroad Co. (C.C.W.D. Tenn.) 54 F. 278 (Hammond, J.); Pinson v. Railroad (C.C.) 54 F. 464; Simpkins v. Railroad (C.C.) 61 F. 999; Sloss Iron Co. v. Railroad Co. (C.C.) 75 F. 106; Hanchett v. Humphrey (C.C.) 93 F. 895; St. Matthews Sav. Bank v. Casualty Co. (C.C.) 105 F. 161.

After careful consideration, I am of opinion that the rule laid down in the Sanborn case and followed in the later cases, is based upon the sounder reasoning, and that as that case has been followed in every case in which the question has arisen in any district within this circuit, including the Western District of Tennessee, it should now be followed in this district; and the first ground of the defendant's motion to retax the costs will accordingly be overruled.

2. The second ground of the motion relates to the item of $700.00 taxed by the clerk as examiner's fees for taking complainant's testimony, which was taxed by the clerk as 2,800 folios, the number claimed, at the rate of 25 cents per folio of 100 words.

By stipulation of counsel it was agreed that the testimony in this case might be taken anywhere in the United States before any qualified notary public or other officer competent to administer oaths; that it should be taken orally under the 67th equity rule and reduced to typewriting by the officer or by a skilled stenographer under his direction; and that when so taken it should have the same force and effect as if taken before a standing officer of the court or a special examiner duly appointed. It furthermore appears that the testimony in question was taken in Minnesota by a notary public, who was also a stenographer; that he made an original typewritten transcript of the testimony, which was filed in the court, and also made two carbon copies, one of which was furnished to counsel for complainant and one to counsel for defendant; that he charged 25 cents per folio for the original and the two copies (which was concededly paid by the complainant); and that the charge of 25 cents per folio is the regular and customary charge for taking testimony in the Federal Courts in Minnesota where three copies are thus made.

In passing upon the present motion, it is unnecessary to determine the unsettled question as to the fees to be properly taxed when depositions have been taken by an officer whose compensation has not been fixed by the Federal Statutes, upon which, as appears from the cases collected and digested in Gunckel's Costs in Federal Courts, Secs. 15 to 17, inc., p. 42 et seq., a great diversity of opinion has been expressed; or to determine whether in such case the standard adopted should be the reasonable charges customarily allowed for similar services in the place where the depositions were taken (Sedgwick v. Grinnell, 10 Ben. 6, 21 Fed.Cas. 979; Kitchin v. Parker (D.C.) 27 F. 480); or the fees now allowed by the Revised Statutes to clerks and formerly to commissioners of the Circuit Court for similar services (Jerman v. Stewart (C.C.) 12 F. 276; United States v. Construction Co. (C.C.) 158 F. 833, 834); or a sum fixed by the practice in the particular circuit (Edison Light Co. v. Elec. Co. (D.C.) 63 F. 559); or the established rate of charges in the State courts (Indianapolis Water Co. v. Straw-Board Co. (C.C.) 65 F. 534). Nor is it necessary to determine the effect of the 8th clause of the former 67th equity rule in reference to the taxation of the expenses of taking down depositions by a stenographer other than the officer taking the depositions.

The sole question now presented is as to the costs which may be properly taxed where the depositions are taken before a notary public, who is himself a stenographer, and...