In re Visking Corporation

• Decision Date: 08 April 1943
• Docket Number: No. 5038.,5038.
• Citation: 134 F.2d 1013
• Parties: In re VISKING CORPORATION et al.
• Court: U.S. Court of Appeals — Fourth Circuit

134 F.2d 1013 (1943)

In re VISKING CORPORATION et al.

No. 5038.

Circuit Court of Appeals, Fourth Circuit.

April 8, 1943.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

Lawrence Bristol, of New York City (Elmer R. Helferich, of New York City, C. O'Conor Goolrick, of Fredericksburg, Va., Wm. S. Pritchard and Harry H. Levin, both of New York City, and Lewis C. Williams, of Richmond, Va., on the brief), for appellants.

Paul W. Kear, Clerk of the District Court, of Norfolk, Va., in support of the decree of the District Court.

PARKER, Circuit Judge.

This is an appeal from an order of the District Court determining costs to be taxed in connection with the certifying by the clerk of a record on appeal to this court. The papers constituting the record consisted of copies of pleadings, testimony and exhibits made outside the clerk's office at the expense of the parties. They were furnished by the parties to the clerk and by him assembled, compared with the originals on file in his office and certified as the record on appeal. Under the order appealed from, the clerk's fee was fixed at $1,112.70, based on 7,418 folios at 15 cents per folio. The contention of appellants is that the fee should have been fixed at $370.90, based on the same number of folios at 5 cents per folio. The question involved is whether paragraph 11 or paragraph 12 of the Act of February 11, 1925, 43 Stat. 858, 28 U.S. C.A. § 555, subds. 11, 12, is controlling. These paragraphs, which are a part of the statute prescribing fees to be charged by the clerk, are as follows:

"11. For making and comparing a transcript of record on appeal or writ of error when required or requested, 15 cents for each folio of one hundred words.

"12. For comparing any transcript, copy of record, or other paper not made by the clerk with the original thereof, 5 cents for each folio of one hundred words."

Since the clerk did not make but merely compared the copies furnished him in making the certificate to this court, it is clear, we think, that paragraph twelve is the provision applicable and that only 5 cents per folio is taxable as costs for the service. We are not impressed with the argument that the clerk makes the record for the appellate court. The theory underlying appeal under the new rules is that the appellate court has before it, in the form of copies, the record of the court below, or such parts of it as the parties may designate, including always the portions specified in Rule 75 (g), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. The clerk is required to certify and transmit to the appellate court "a true copy" of the portions of the record designated by the parties or required by the rule; and the rule provides that the copy so certified and transmitted shall constitute the record on appeal. What the clerk does under the rule, therefore, is merely certify and transmit a copy of the record or portions of the record of the lower court, not make a record. If he makes the copy which he certifies and transmits, the fee taxed is 15 cents per folio. If he merely compares copies furnished by the parties, it is 5 cents per folio. Fastening the papers together, or striking out unnecessary portions of copies furnished him, does not, we think, justify the higher rate.

The clerk relies upon an opinion of comptroller Tracewell rendered in the year 1902, interpreting sec. 828 of the Revised Statutes, 28 U.S.C.A. § 555, which provided:

"For entering any return, rule, order, continuance, judgment, decree, or recognizance, or drawing any bond, or making any record, certificate, return, or report, for each folio, fifteen cents.

"For a copy of any entry or record, or of any paper on file, for each folio, ten cents."

The opinion of the Comptroller was to the effect that the certification was the making of a record for which the 15 cent rather than the 10 cent charge was taxable, and a number of District and Circuit Court decisions are in accord. See Blain v. Home Ins. Co., C.C., 30 F. 667; McIlwaine v. Ellington, C.C., 99 F. 133; Mohrstadt v. Mutual Life Ins. Co., C.C., 107 F. 872, 145, Id., C.C., F. 751; Thornton v. Ins. Co., C.C., 125 F. 250; Hoysradt v. Delaware L. & N. R. Co., C.C., 182 F. 880; Sarfert Co. v. Chipman, D.C., 205 F. 937. Contra, Cavender v. Cavender, C.C., 10 F. 828. These decisions, however, are not convincing. More impressive, we think, is the decision to the contrary of the Circuit Court of Appeals of the Third Circuit in United States v. Oliphant, 3 Cir., 230 F. 1, 13. In that case, after referring to the fact that the question had been a controverted one in the Circuit Courts since 1882 and reviewing the decisions, the Court, speaking through Judge Woolley, went on to say:

"By the first paragraph quoted, the statute provides that `for entering any return, rule, order, continuance, judgment, decree or recognizance, or drawing any bond or making any order, certificate, return or report,' a charge shall be made at the rate of 15 cents a folio.

"The acts here contemplated are original in their nature. They are such and only such as occur and are required to be performed in the progress of the cause. They constitute the recorded entries of the court's doings and of the court's orders and judgments, both interlocutory and final. They are original acts in the sense of being the first of their character or in their order, and in the sense of deriving their origin from no previous record. They are original in the sense employed in several of the cases cited, in that they require...