Gray Tool Co. v. Humble Oil & Refining Co.

• Decision Date: 01 August 1951
• Docket Number: No. 12990.,12990.
• Citation: 190 F.2d 779
• Parties: GRAY TOOL CO. v. HUMBLE OIL & REFINING CO.
• Court: U.S. Court of Appeals — Fifth Circuit

190 F.2d 779 (1951)

GRAY TOOL CO. v. HUMBLE OIL & REFINING CO.

No. 12990.

United States Court of Appeals Fifth Circuit.

August 1, 1951.

Homer T. Bouldin, Houston, Tex., for appellant.

J. Vincent Martin, Houston, Tex., for appellee.

Before HUTCHESON, Chief Judge, and McCORD, and BORAH, Circuit Judges.

PER CURIAM.

Claiming that because appellant excessively designated for printing portions of the record not essential to the decision of the question presented by the appeal, defendant-appellee has moved to retax all the printing costs, $10,680.50, against the appellant or, in the alternative, one-half thereof.

Plaintiff-appellant, vigorously opposing the motion, insists: that no part of the designation was excessive; that no part of the costs should be taxed against it; and that the motion should be denied.

Identifying the matters claimed to have been excessively designated by reference to item numbers of plaintiff-appellant's designation as to printing record, beginning on page 1 of the transcript of record, the motion presents its attack in paragraphs 1 to 6.¹

In Knutson v. Metallic Slab Form Co., 5 Cir., 132 F.2d 231, and in Phillips Petroleum Co. v. Williams, 5 Cir., 159 F.2d 1011, we have carefully pointed out the obligation resting upon appellant and appellee to proceed by concert of action and, where appropriate, by resort to the district court to shorten the record and save printing costs on appeal. We have made it clear that this was in the interest both of making an intelligible submission and of saving unnecessary and wasteful costs in respect of eliminating from the record what is unimportant to the appeal and from the printing what is unnecessary to be printed.

In each of those cases the only designation, both as to preparation of the record and its printing on appeal, was that made by appellant. In each of them, calling attention to the fact that no effort had been made to reduce the record or the printing, we taxed the appellant with the costs attendant upon the faulty and excessive designation.

Here, as in those cases, there was no concert of action in an endeavor to shorten and simplify the record, but here, unlike in those cases, the appellant did not by a lump designation of all the record bring everything up, nor did he by a like lump designation require the whole record to be printed. On the contrary, he selectively designated, both for the record and for printing, the portions of it which he desired. Whereupon appellee, without, as far as is made to appear, in any manner complaining of the excessiveness of the designations or seeking to reduce them, proceeded to make on its own account large and extensive additional designations of matter to be included in the record and later on of additional portions of the record to be printed.

Here, as was the case in Phillips Petroleum Co. v. Williams, supra, no complaint was made by appellee, in the briefs or at the hearing of the case, and this court's attention was not specifically called to the fact, that excessive designation or excessive printing had occurred.

Appellee's motion, by complaining of the printing, has, however, properly brought to our attention, not only the matter of excessive printing but also that of the excessiveness in the designation of the record on appeal, which, on our own motion, we are authorized to consider and to require amends for. In doing so, however, we must keep fully in mind both the nature of the case on appeal and the attitude of both parties while the appeal was coming up as to what was deemed by each reasonably necessary for its proper presentation and consideration. We must not strain at a gnat in respect of appellant's designations and swallow a camel in respect of those made by appellee. Neither may we permit hindsight, as to what was actually necessary to be included in the record, to take the place of foresight or to blind us to the fact that when what should be designated was a matter of...