Davis v. Adams

• Decision Date: 29 May 1901
• Docket Number: 11,829.
• Citation: 109 F. 271
• Parties: DAVIS v. ADAMS.
• Court: U.S. District Court — Northern District of California

109 F. 271

DAVIS v. ADAMS.

No. 11,829.

United States District Court, N.D. California.

May 29, 1901

DE HAVEN, District Judge.

This action was prosecuted by the libelant in forma pauperis under the act of July 20, 1892 (27 Stat. 252). That act provides:

'That any citizen of the United States entitled to commence any suit or action in any court of the United States, may commence and prosecute to conclusion any such suit or action without being required to prepay fees or costs or give security therefor before or after bringing suit or action, upon filing in said court a statement under oath, in writing, that, because of his poverty, he is unable to pay the costs of said suit or action which he is about to commence, or to give security for the same, and that he believes he is entitled to the redress he seeks by such suit or action, and setting forth briefly the nature of his alleged cause of action. * * * '

'Sec 5. That judgment may be rendered for costs at the conclusion of the suit as in other cases: provided, that the United States shall not be liable for any of the costs thus incurred.'

The libelant recovered judgment for the sum of $40.80, without costs, other than those incurred subsequent to and including the filing of the amended libel. The amount of the judgment has been paid into the registry of the court. The present motion, which is in writing, incorrectly recites that the clerk of this court 'now holds said judgment money for costs in said cause incurred previous to the amending of said libel,' and the court is asked to make an order directing him to pay said money over to the libelant. The money paid in satisfaction of the judgment is not in possession of the clerk, but is in the registry of the court, and can only be withdrawn by an order signed by the judge, and 'entered and certified of record by the clerk. ' Rev. St. U.S. Sec. 996.

The question involved in the motion relates to the right of libelant to withdraw from the registry of the court the money recovered in this action, without payment of the fees of the clerk for filing libel, issuing monition, etc., at the request of libelant, prior to the filing of the amended libel. In my opinion, the libelant has no such right. The statute above referred to does not take away from the clerk in actions prosecuted thereunder, the right to charge and recover for his services the same fees as are allowed in actions not prosecuted...