Ferguson v. Dent

• Decision Date: 21 April 1891
• Citation: 46 F. 88
• Parties: FERGUSON et al. v. DENT et al.
• Court: U.S. District Court — Western District of Tennessee

46 F. 88

FERGUSON et al. v. DENT et al.

United States Circuit Court, W.D. Tennessee.

April 21, 1891

T. B Edgington, for plaintiffs.

Poston & Poston and Turley & Wright, for defendants.

HAMMOND J.

In this equity cause a decree was originally rendered for the plaintiffs on their bill and for costs. An appeal was taken and the case was reversed in the supreme court, (10 S.Ct 13,) with directions to dismiss the bill and render judgment for costs against the plaintiffs and the surety on their prosecution bonds. The costs claimed for defendants are as follows:

Clerk's fees paid by the receiver	$ 391 40
Marshal's fees, paid by the receiver, ........................	208 26
Examiner's fees, paid by the receiver, .........................	8 20
Master's fees, paid by the receiver, on printing record,	500 00
Expense fees, paid by the receiver, on printing record, ......	829 62
Receiver's commission, .....................................	2,731 60
Docket fee on final hearing, ..................................	20 00
Docket fee on 98 depositions, ................................	245 00
Costs taxed in the supreme court, ............................	135 15
Clerk's fees since the appeal, ................................	49 75
Marshal's fees since the appeal, ..............................	53 54
Costs paid by defendant on Walker's deposition, ................	7 00
Costs of transcript in Re Ferguson, bankrupt, ..................	6 00
	---------
Making in all claimed by defendants, ......................	$5,185 52
Of which the clerk has so taxed all but receiver's fee, ...	$2,731 60
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Leaving as the clerk's taxation, ..........................	$2,453 92

To this taxation the plaintiffs make two objections and the defendants one, as follows:

1. A docket fee of $2.50 has been taxed on each deposition 'taken and admitted in evidence,' amounting in all to $245 on the 98 depositions on file. Of these depositions, 14 were taken outside this district; 71 before examiners at Memphis, where the court is held; and the remaining 13 in this city, before officers other than an examiner or master. For the plaintiffs, who are adjudged to pay costs, it is contended that these fees are not taxable upon depositions taken within the jurisdiction of the court before one of its examiners, and this objection goes to the above 71 depositions so taken, but does not apply to the other 27. The record in this case shows that as a matter of fact each of the depositions so taken before the master or an examiner were by written interrogatories and written answers, just as depositions are usually taken, and not 'in narrative form,' as insisted in the brief of counsel. The argument against the taxation of these fees is that the testimony so taken is simply the examination of the witness, and not his deposition, and that, therefore, such fee is not taxable, since the statute applies only to 'depositions.' It is as follows: 'For each deposition taken and admitted as evidence in a cause, two dollars and fifty cents. ' Rev. St. Sec. 824. Section 862 of the Revised Statutes provides that 'the mode of taking proof in causes of equity and of admiralty and maritime jurisdiction shall be according to rules now or hereafter prescribed by the supreme court, except as herein specially provided. ' And the sections of the revision immediately following prescribe the mode of taking depositions de bene esse 'in any civil cause depending in a circuit or district court,' (Rev. St. Secs. 863-865,) and under a dedimus potestatem, 'according to common usage;' and in perpetuam rei memoriam, 'according to the usages of chancery,' (Id. Secs. 866-870.) The original supreme court equity rule No. 67 prescribes how 'commissions to take testimony may be taken out * * * upon interrogatories filed by the party taking out the same. * * * If the parties shall so agree, the testimony may be taken upon oral interrogatories by the parties or their agents without filing any written interrogatories. ' This rule was amended at the December term, 1854, by giving the judge of the court authority 'to vest in the clerk of said court general power to name commissioners to take testimony. ' Later, at the December term, of 1861, the rule was further amended by providing that 'either party may give notice to the other that he desires the evidence to be adduced in the case to be taken orally, and thereupon all the witnesses to be examined shall be examined before one of the examiners of the court; * * * and such examination shall take place in the presence of the parties or their agents, by their counsel or solicitors, * * * and which shall be conducted as near as may be in the mode now used in common-law courts. The depositions taken upon such oral examination shall be taken down in writing by the examiner in the form of narrative, unless he determines the examination shall be by question and answer in special instances. * * * When the examination of witnesses before the examiner is concluded, the original deposition, authenticated by the signature of the examiner, shall be transmitted by him to the clerk of the court. * * * Testimony may be taken on commission in the usual way by interrogatories and cross-interrogatories. ' And, finally, by a still subsequent amendment at the December term, 1869, of the supreme court, it was provided that, 'where the evidence to be adduced in a cause is to be taken orally, * * * the court may, on motion of either party, assign a time within which each party shall take his evidence. ' The statutes regulating the taking of the written testimony of witnesses nowhere make any distinction between examinations and depositions; nor does this equity rule 67, as originally promulgated, use either word, but speaks, as does the first amendment to it, of the proof simply as 'testimony.' Its principal amendment, made in 1861, provides that 'testimony' may be 'taken orally,' how the 'examination' shall be conducted, and that the 'depositions taken upon such oral examination shall be taken down in writing' in the manner indicated, and that at the close of the 'examination' the 'original deposition' shall be filed as provided; while in the last amendment the proof is only referred to as 'evidence' in a cause 'taken orally.' This rule nowhere calls the proof taken under its provisions an 'examination,' and this word, as used in it, always has reference to the taking of proof, and never to the testimony after it has been given by the witness and reduced to writing. Equity rules 68 and 69 likewise refer solely to the taking of 'testimony' in a cause 'by deposition' under the statute, while rule 70, governing the taking of statutory depositions de bene esse, provides for the appointment of commissioners 'to take the examination' upon notice of the time and place of taking the 'testimony,' and such depositions are conceded to be taxable with the attorney's fee. The general admiralty rules of the supreme court prescribe a reference to commissioners, who are granted all the powers 'usually given to or exercised by masters in chancery in reference to them,' (Sup. Ct. Admiralty Rule 44,) and provides further for the taking of new proof on appeal 'by deposition' before a commissioner or other officer 'authorized to take depositions' under the statute 'upon an oral examination and cross-examination,' unless the court 'upon motion allow a commission to issue to take such deposition upon written interrogatories and cross-interrogatories,' prescribing particularly the mode to be pursued 'when such deposition shall be taken by oral examination. ' Admiralty Rules 49, 50, 52. In the rules of our circuit court (Ed. 1864) the written testimony of witnesses in cases at law and in equity is spoken of only as 'depositions.' Rules 13, 14. Therefore, upon a careful inspection of all these rules, as well as of the statutes, there does not seem to be any such distinction between depositions and examinations as counsel here insists upon.

Nor does the word 'deposition,' as used in this fee statute, (Rev. St. Sec. 824, supra,) appear by the decisions of the courts to be confined in its meaning or application by any such limitations, or by the weight of authority, probably, restricted by any limitations whatever. In Stimpson v. Brooks, 3 Blatchf. 456,-- an equity case, decided by Judge BETTS in 1856, and the first decision, I think, under this clause of the statute, [46 F. 91] -- the word 'deposition' was defined to be 'a generic expression, embracing all written evidence verified by oath. * * * A 'deposition' is evidence given by a witness under interrogatories, oral or written, and usually written down by an official person. ' In that case it was ruled that the docket fee of $2.50 was not taxable upon ex parte affidavits used on a motion for preliminary injunction. And in The Sallie P. Linderman, 22 F. 557, 558, Judge NIXON, in defining 'deposition,' as used in this statute, says:

'In its strict and appropriate sense it is limited to the written testimony of a witness given in the course of a judicial proceeding, either at law or in equity.'

The only case cited by counsel against the taxation here is Factory v. Corning, 7 Blatchf. 16, and the precise question before the court there was whether the fee was taxable upon oral testimony taken before the master 'on the accounting' before him, and evidently after the final decree settling the rights of the parties to the cause. Judge NELSON in disallowing the taxation says the statute 'relates to testimony taken out of court, under authority which will entitle it to...