Clough v. United States
| Decision Date | 13 April 1893 |
| Docket Number | 3,127. |
| Citation | 55 F. 921 |
| Parties | CLOUGH v. UNITED STATES. |
| Court | U.S. District Court — Western District of Tennessee |
John B Clough, pro se.
S. W Hawkins, Dist. Atty., for the United States.
This suit was instituted by the filing of the plaintiff's verified petition in the circuit court on April 18, 1891, and the jurisdictional requirements of the statute authorizing such suits against the United States have been fully complied with. The petitioner herein claims fees from the United States for services performed as clerk of the circuit and district courts of the United States for this district, and as commissioner of the circuit courts; and he has so scheduled the items claimed that the respective amounts sought to be recovered as clerk of either court, and as commissioner, are conveniently displayed and itemized, and are all for services rendered previously to January 1, 1891. Accounts have been duly rendered to the government, and properly approved by the courts here,-- either circuit or district,-- embracing all the items set forth in the petition, and have been audited at Washington and the items sued for disallowed.
The defendant, 'for plea or answer to the plaintiff's petition herein this day filed, says that the defendant admits the performance of the services by plaintiff, the alleged fees for which he seeks to recover a judgment against the defendant by this suit, and, for a defense to this action, further says that plaintiff ought not, in law, to recover therefor, because defendant says that there is no statute of the United States, or other law, under which plaintiff should or can obtain judgment for said services or for such fees, ' and issue has been properly joined thereon.
Among the items claimed here for services rendered by petitioner as a commissioner of the circuit courts are fees for making dockets and indexes, $367, and an amount erroneously disallowed him, of $197, on his accounts for the six months ending March 31, 1890; and he produces the treasury statement sent him from the office of the first comptroller of the treasury, where the error is apparent, the total disallowance therein being $197 in excess of all the items disallowed at the department,-- the error being one of addition, apparently. But in the certified transcript from the books of the treasury sent to the district attorney as evidence in this case is an item of disallowance of just this sum, for making 'dockets and indexes,' etc.; and the commissioner's accounts show he charged a like amount for such fees during that period. The error, therefore, was in omitting from the statement sent petitioner the item of $197 for docket fees. The two items, amounting to $564, must therefore be disallowed here. U.S. v. Ewing, 140 U.S. 142, 11 S.Ct. 743; U.S. v. McDermott, 140 U.S. 151, 11 S.Ct. 746; Clough v. U.S. 47 F. 791.
He also claims fees for taking acknowledgments of principal and sureties to bail bonds, the charge being made at 25 cents for the acknowledgment of each person thereto. It was ruled in the three cases just cited that only on acknowledgment fee is chargeable for the principal and sureties on each bond. A mere inspection of Schedule C to the petition here shows that under such ruling the petitioner should be allowed the sum of $31.25; and the $184.25 balance of the item, must be disallowed.
The sum of $113.80, being fees for affixing seals to writs, at 20 cents each, must be now disallowed, under the recent decision in U.S. v. Clough, (Cir. Ct. App; filed at Cincinnati, Ohio, February 6, 1893,) 55 F. 373; Id., 47 F. 791, 795, 796.
The amount claimed for drawing complaints (only disallowed in two out of the six accounts here embracing them) must, of course, be allowed. U.S. v. Ewing, supra; U.S. v. McDermott, supra; U.S. v. Barber, 140 U.S. 177, 11 S.Ct. 751; Clough v. U.S., supra. Petitioner originally charged these fees at 15 cents a folio, while the supreme court, in the cases just cited, has since ruled that the statute authorized the charge at 20 cents per folio. He is therefore entitled to a decree for the sum of $57.60 in this behalf.
The fees claimed for 'copies of process,' etc., returned to the court under section 1014, Rev. St., in cases where preliminary examinations were had, ($13.80,) as well as those for drafting affidavits of sureties in bail bonds, ($10.10,) and for certifying to oaths officially taken before him, (31.65,) have been adjudged in favor of commissioners by the supreme court in U.S. v. Barber, supra; and in U.S. v. Ewing, supra, that court held that fees for entering the returns of and filing process, and for the issuance of mittimus writs, were also properly chargeable against the United States by commissioners. These items, amounting, respectively, to $22.20 and $1.80, are therefore allowed here.
The small item of $2.55 for issuing certificates to witnesses for payment by the marshal of their fees for attendance before him as commissioner, charged at 15 cents each, is allowed. In all the accounts of the commissioner involved in this case, and extending over a period of two years, such fees have only been questioned to this trifling extent; and fees for like services, charged in a different mode, were allowed in U.S. v. Barber, 140 U.S. 164, 167, 11 S.Ct. 749.
Payment of the remaining item, of $11.05, was refused at the department because the 'name of the defendant' was not given in the account. The retained duplicate filed in the clerk's office shows who the defendant in the case was, and the records of this court show that he was subsequently indicted and tried for the offense for which he was held to bail. The item is adjudged in petitioner's favor. It follows from the foregoing that petitioner is entitled to a decree in his favor, for services rendered by him as commissioner, in the sum of $242.
The amounts claimed by plaintiff as clerk of our circuit and district courts appear in Schedules A and B, respectively, to his petition, and may be so grouped as to present comparatively few subjects for consideration by the court, although they are composed of numerous items, and cover a period of between four and five years. The legality of none of the fees claimed in this suit had been directly passed upon by the supreme court when the same was instituted, but most of them were considered by that court in the fee cases decided in the summer of 1891, since which time the differences between clerks' charges and rulings of the treasury officials in these matters have naturally very largely disappeared.
Petitioner has withdrawn the items of the petition herein for fees for entering on the court minutes certain orders in criminal and other cases, and hence they need not be considered; and under the decision in U.S. v. Clough, supra, all fees for affixing seals of court to process and commissions issued out of the clerk's offices are disallowed the plaintiff, the total of these items being the sum of $1,422.25. This only leaves for consideration the following:
Clerk's Fees. Circuit. District. Amounts.
1. For filing papers sent in by commissioners . $ 9 00 $ 34 10 $ 43 10
2. For filing registry reports, (R. S. § 798)...... 90 1 60 2 50
3. For copies mittimus writs issued, (R. S. §
1028)...................................... 24 55 22 45 47 00
4. For copies scire facias writs issued, (R.
discharging witnesses ..................... 102 20 171 00 273 30
11. For dockets and indexes, sci. fa. cases in the 14 00
district courts
12. For making official reports to department district 8 45
courts
13. For per diem fees for attendance, circuit
court ........................................................... 10 00
14. For all fees in two cases in the circuit
courts ........................................................... 8 90
15. For entering orders appointing election
supervisors, circuit ............................................ 32 45
16. For drafting official oaths of election
supervisors, circuit ............................................ 82 60
17. For issuing commissions to election
supervisors, circuit ........................................... 319 70
18. For copies criminal records sent to
penitentiary, circuit ........................................... 42 00
19. For certifying to marshal fees of jurors
and witnesses, circuit .......................................... 69 60
20. For errors in addition in comptroller's
statement, circuit ............................................... 9 50
21. For transfer of fees by comptroller to
district from circuit .......................................... 134 40
It is frankly conceded by the district attorney that the right to the fees embraced in items 1, 5, 6, 8, and 19 of this schedule has been directly ruled in petitioner's favor by the supreme court in U.S. v. Van Duzee, 140 U.S. 169, 11 S.Ct. 758, the opinion of the court being delivered by the supreme justice of this circuit. These amounts are therefore allowed, there being no question whatever as to the performance of the services charged for.
The small item of $2.50 for filing registry reports is also allowed. The statute provides that 'at each regular session of any court of the United States the...
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