Fenno v. Primrose

• Decision Date: 07 January 1903
• Docket Number: 429.
• Citation: 119 F. 801
• Parties: FENNO et al. v. PRIMROSE et al.
• Court: U.S. Court of Appeals — First Circuit

119 F. 801

FENNO et al. v. PRIMROSE et al.

No. 429.

United States Court of Appeals, First Circuit.

January 7, 1903

Samuel Dickson and R. C. Dale, for plaintiff in error.

Frank P. Prichard, for defendant in error.

In Error to the Circuit Court of the United States for the District of Massachusetts.

See (C.C.) 116 F. 49.

Before COLT, Circuit Judge, and ALDRICH and BROWN, District judges.

ALDRICH District Judge.

The questions presented in this case are of exceeding interest and of great practical importance to the profession and to litigants, and they have been discussed upon both sides with notable ability and commendable thoroughness. They relate-- First, to the power of a federal court to appoint an auditor in an action at law, where the parties are entitled, under the constitution, to a jury trial; and, second, to the power of such a court to regulate the compensation of the auditor and to determine where the burden of such compensation shall rest.

There is no federal statute authorizing the reference of an action at law to an auditor, nor is there any statute providing compensation by placing the burden either upon the government or the parties.

In this case the plaintiffs in error, who were the prevailing party and who have paid one-half of the auditor's fees, claim the right (there being no question about the reasonableness of the fees) to tax the amount paid the auditor in their bill of costs against the defeated party, and that the right to so tax it is an absolute right.

At the bar there was considerable discussion of the question whether the right of the prevailing party to costs depends upon section 721 or section 914 of the Revised Statutes (U.S Comp. St. 1901, pp. 581, 684), and of the question as to how far the federal courts should conform to the state laws and the state practice in matters of this kind. Under the peculiar circumstances of this case, however, the discussion in this respect does not aid in the solution of the question presented, for the reason that the courts of general jurisdiction in Massachusetts at the present time are governed by a statute (Rev. Laws Mass, c. 165, Secs. 55, 60) which provides for reasonable compensation to auditors, and that it shall be paid by the county. So, in the absence of a federal statute clothing the federal courts with authority to place the burden upon the government, as is now done by the Massachusetts courts of general jurisdiction, we are confronted with a situation in which the federal courts cannot conform their practice to that of the courts of the state. The Massachusetts statute referred to (section 55) provides that 'the supreme judicial court, or the superior court, in its discretion, and a police, district or municipal court, if both parties assent thereto in writing, may appoint one or more auditors,' etc.; and it will therefore be seen that the courts of general jurisdiction may, under this statute, act in their discretion, without regard to the assent of the parties, while the inferior courts may appoint upon assent in writing by both parties; and, where it is done by the higher courts in the exercise of discretion, the statute (section 60) not only contemplates that the compensation of the auditor shall not be taxed as costs against the defeated party, but expressly requires it to be paid by the county, while, if done by the inferior courts upon assent in writing, the statute contemplates that the fees may be paid by either party, and taxed in the bill of costs.

We must assume, therefore, in this case, so far as the state practice bears upon the situation, that the lawmaking power of Massachusetts, acting under the injunction of article 11 of part 1 of the constitution of Massachusetts, and upon grounds of public policy, that every subject ought to find a certain remedy and obtain right and justice freely, has, so far as the appointment of auditors without consent of the parties in writing is concerned, declared against the idea of placing the burden incident to an auditor's trial, under an absolute rule, upon the defeated party, as taxable costs in favor of the prevailing party.

The intention, as it seems to us, of the Massachusetts statute, is quite apparent. It was intended, in that class of cases where the parties assent in writing, thereby selecting their own tribunal, that the burden of a reasonable compensation to the auditor should be taxed as costs against the defeated party, while in that class of cases where the court, by virtue of its inherent or statutory power, creates an auditor tribunal without the consent of the parties, that the expense shall not be taxable as costs, and that the burden shall fall upon the county. So having reference, therefore, to the present law and practice of the state in the higher courts, to which we should conform our practice, in a reasonable way, in proper cases, we find no warrant for taxing auditor's fees in this case against the defeated party; nor should we find warrant for so doing were we to look to the practice of the inferior courts, for the statute with reference to such courts is based upon the assent of the parties in writing, which does not exist in this case.

It does not necessarily follow, however, that, because the state practice places the burden upon the county under a somewhat recent Massachusetts statute authorizing it, a federal court, exercising jurisdiction over a case in which an auditor is necessary in order that justice shall be administered, has not the power to appoint an auditor, and direct where the burden shall rest, merely for the reason that there is no federal statute authorizing the court to order the expense to be paid by the government. The rule, however it may be construed, which requires us to follow the practice of the state court, is not so absolute or drastic that, because the practice under a state statute is to place the burden upon the county,-- a rule which we cannot follow,-- we should decline to administer justice in a case within our jurisdiction because it is impossible for this court in that respect to conform its practice to that of the state court. This being so, it becomes necessary for us to inquire what the inherent power of the federal court is in a situation like the one in this particular case.

Where a case within the jurisdiction of the court is presented, and the parties are entitled under the constitution to a jury trial, and where the accounts are so numerous and confused that it would be impossible for a jury to comprehend and intelligently decide it, by reason of the complexity and diversity of the issues and items, unless they are simplified by a preliminary investigation, and where for that reason it would be impossible for the court to administer justice between the parties unless such preliminary investigation and simplification are had by way of preparing the case for the ultimate tribunal, it cannot be possible that the power of the federal court to do justice hangs solely upon the question whether there is a practice in the state court that the fees or compensation of such preliminary investigation may be taxable as costs. Under such conditions, and in the absence of a federal statute, we have no doubt of the power of the circuit court to direct a preliminary investigation in a proper case, and to designate a suitable person as an officer of the court to call the parties before him, as a tentative tribunal, to simplify the items and the issues in order that the case may be intelligently presented to a jury.

A rule which would withhold such power from courts charged with the duty of ascertaining and establishing the rights of litigants would operate as a denial of justice in a certain class of cases. If they power exists as a necessary incident of judicial procedure, authority and power to provide for the expense of such a preliminary investigation necessarily exist as well. The duty is upon the government to provide a tribunal for the establishment of disputed rights, and courts and juries are provided for such purpose; but, if contending parties come with a case involving items and issues so complex that a jury cannot comprehend and carry them, the misfortune is that of the parties. It may be the misfortune of one or both of the parties, and under such circumstances the court may devise such means for preliminary investigations and simplifications as the necessities of the situation and justice may require. An arbitrary and absolute rule, however, casting the entire burden of such preliminary expense upon the defeated party, might operate unjustly, and might cast an excessive and unreasonable burden upon the party upon whom the burden should not rest.

For the reasons stated, we cannot look for guidance to the cases in the federal courts where auditors have been appointed and the fees taxed in accordance with a state practice based upon a state statute; and we are thus compelled to consider this case not only in the absence of a federal statute,...