Andrews v. Cole
| Citation | 20 F. 410 |
| Parties | ANDREWS v. COLE. |
| Decision Date | 30 May 1884 |
| Court | U.S. District Court — Northern District of New York |
Thos D. Richardson, for complainant.
R. A Stanton, for defendant.
The defendant objects to the taxation by the clerk of a docket fee of $20 as part of the costs of the complainant upon a final decree herein. The defendant did not answer or demur to the bill, and complainant took an order for a decree pro confesso, and subsequently obtained a final decree. As the cause has been finally determined, and as its determination involved a hearing by the court, there has been a final hearing within the meaning of section 824, Rev. St., which authorizes a docket fee of $20 to be taxed. There has been much discussion of the meaning of the term 'final hearing,' as used in this section, and a diversity of opinion is found in the decisions. Several cases decide that any order or determination which results in a final disposition of the cause, including a dismissal of the bill on the motion of the complainant, or the dismissal of an appeal by the appellee for irregularity on the part of the appellant in bringing it to a hearing, is a final hearing. Hayford v. Griffiths, 3 Blatchf. 79; The Alert, 15 F. 620; Goodyear v. Sawyer, 17 F. 2. Other cases hold that there is a final hearing only when some question of law or fact has been submitted to the requiring not merely formal action but consideration. Coy v Perkins, 13 F. 112; Yale Lock Co. v. Colvin, 14 F. 269.
The defendant relies upon the authority of these latter decisions, but they are not decisive here, because a complainant is not entitled, as of course to a final decree when he has obtained an order pro confesso. The matter of the bill is still to be decreed by the court, and then only when it is proper to be decreed. The bill is to be examined to see if the facts alleged entitle the complainant to relief. According to the earlier practice of the English chancery a bill would not be taken pro confesso without putting the complainant to prove its material allegations. Johnson v Desmineere, 1 Vern. 223. The later practice is to set down the bill for hearing, upon an order previously obtained that the bill be taken pro confesso, whereupon the record is produced, and the court hears the pleadings and pronounces the decree. The complainant is not permitted to take at his discretion such a decree as he may be willing to abide by. Geary v. Sheridan, 8 Ves. 192. ...
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Kaempfer v. Taylor
...Wooster v. Handy, 23 F. 49, of Judge Lacombe in Ryan v. Gould, 32 F. 754, and the definition of a final hearing by Judge Wallace in Andrews v. Cole, 20 F. 410, as one where cause has been finally determined, and its determination involved a hearing by the court,' are controlling in this cir......
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... ... confesso is entered, and thereon the final decree is made, ... that the tax fee is earned. Andrews v. Cole (C.C.) ... 20 F. 410. In Coy v. Perkins (C.C.) 13 F. 111, ... Justice Gray says: ... [273 F. 271] ... 'We are of the opinion that upon ... ...
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...Wooster v. Handy, 23 F. 49; Mercartney v. Crittenden, 24 F. 401; Consolidated, etc., Co. v. American, etc., Co., Id. 658. But see Andrews v. Cole, 20 F. 410. Plausible, however, as is the suggestion that I shall now reverse it, I do not think this case requires that course, and I reserve th......
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Albion Lumber Co. v. Inter-Ocean Transp. Co.
...finally disposes of a particular case is a final hearing thereof. The Alert (D.C.) 15 F. 620; Goodyear v. Sawyer (C.C.) 17 F. 2; Andrews v. Cole (C.C.) 20 F. 410; v. Thomas (C.C.) 27 F. 429. These cases would support the allowance of the docket fee in the present instance. There is another ......