Kramer v. Jarvis

• Decision Date: 26 September 1949
• Docket Number: Civ. No. 54-48.
• Citation: 86 F. Supp. 743
• Parties: KRAMER v. JARVIS.
• Court: U.S. District Court — District of Nebraska

86 F. Supp. 743

KRAMER v. JARVIS.

Civ. No. 54-48.

United States District Court D. Nebraska, Lincoln Division.

September 26, 1949.

Ladd J. Hubka (Hubka & Hubka), of Beatrice, Neb., for the plaintiff.

Fred Vette (Jack, Vette & Elliott), of Beatrice, Neb., for the defendant.

DELEHANT, District Judge.

The defendant moves for the retaxation of costs by the elimination from the costs taxed by the clerk of the item of $20 as an attorney's docket fee. After the remanding on December 21, 1948, of the action to the state court on the ground that it was not brought here in a valid or proper manner, Kramer v. Jarvis, D.C.Neb., 81 F. Supp. 360, the clerk, on her own motion, taxed the docket fee in the course of her general taxation of costs. The motion followed. It is well taken and should be and is being sustained. However, let it be understood at the outset that the order is made with narrow application only to this case, and is prompted by the state of the law as it existed from September 1, 1948, to May 24, 1929, which period included the date of the order remanding this case (vide infra.)

Except where it is otherwise provided by statute or rule, attorney's fees are not taxable as costs in actions at law pending in federal district courts. Oelrichs v. Spain, 15 Wall 211, 82 U.S. 211, 21 L.Ed 43; Storley v. Armour & Co., 8 Cir., 107 F.2d 499; Gray v. Havemeyer, 8 Cir., 53 F. 174; Central Trust Co. v. Wabash, St. Louis & Pacific Ry. Co., C.C.Mo., 32 F. 684; Warner v. Florida Bank & Trust Co., 5 Cir., 160 F.2d 766; Marks v. Leo Feist, Inc., 2 Cir., 8 F.2d 460. Henkel v. Chicago, St. P., M. & O. R. Co., 284 U.S. 444, 52 S. Ct. 223, 76 L.Ed. 386, dealt with the taxation not of attorney's fees, but of enlarged fees to expert witnesses, in an action at law. However, it is instructive upon the restriction to the statutory items and amounts of the allowable and taxable costs in such a case. No rule of court is involved on this occasion, and the question is whether any statute in effect on December 21, 1948, required or justified the clerk's taxation of the attorney's docket fee. The authority for its taxation must be found in such statute, or, in default thereof, denied.

Title 28 U.S.C.A. § 1920, provides that:

"A judge or clerk of any court of the United States may tax as costs the following: * * * (5) Docket fees under section 1923 of this title."

Section 1923 thus referred to, so far as it is material, follows:

"(a) Attorney's * * * docket fees in courts of the United States may be taxed as costs as follows: $20 on trial or final hearing in civil * * * cases."

Much of the section deals with docket fees in admiralty or criminal cases and is, therefore, omitted as irrelevant to the present inquiry. Obviously irrelevant, too, are provisions for distinct five dollar docket fees "on discontinuance of a civil action" and "on motion for judgment and other proceedings on recognizances." The case does not concern a recognizance. And the manner of its elimination from the docket of this court is quite unrelated to a discontinuance. It came here improperly and was simply returned to the court of its origin, where it either has been or eventually will be reduced to judgment or discontinued upon some appropriate basis. Discontinuance has the connotation either of dismissal or of non-suit, generally voluntary, with or without prejudice to the institution of a new action. Temple v. Cotton Transfer Co., 126 Neb. 287, 253 N. W. 349; Alexander v. Haffner, 323 Mo. 1197, 20 S.W.2d 896; English v. Dickey, 128 Ind. 174, 27 N.E. 495, 13 L.R.A. 40; Town of West Hartford v. Willetts, 125 Conn. 266, 5 A.2d 13. It may not be said with accuracy that an action remaining under vigorous prosecution has been discontinued by the mere circumstance of its return to the state court by a federal district court to which it was removed improperly.

Reverting to the quoted language of section 1923 of Title 28 U.S.C.A., this court is unable at this time to perceive how it may rationally be thought to include the examination by this court of its jurisdiction and, upon an adverse conclusion, the entry of a remanding order. Such consideration, with its final ruling, is not a "trial or final hearing" in the case. "Trial" and "final hearing," in the present context, are alike and equally predicable of the process by which a civil case is submitted either to a jury or to the court without a jury for determination on its merits. Home Life Insurance Co. v. Dunn, 19 Wall 214, 86 U.S. 214, 22 L.Ed. 68; Miller v. Tobin, C.C.Or., 18 F. 609; Fisk v. Henarie, C.C.Or., 32 F. 417; Whelan v. New York, L. E. & W. R. Co., C.C.Ohio, 35 F. 849, 1 L.R.A. 65; Crane v. Reeder, 28 Mich. 527, 15 Am.Rep. 223; Haynes v. Smith, 29 Okl. 703, 119 P. 246. That conclusion is the more obvious if one recalls the earlier Title 28 section 572, from which the quoted portion of the present section 1923 was derived with considered modification and simplification. In that earlier form, omitting irrelevant language, the section was as follows: "On a trial before a jury, in civil * * * causes * * * or on a final hearing in equity * * *, a docket fee of $20 * * *. In cases at law, when judgment is rendered without a jury, $10." In the current revision the $10 fee on the entry without a jury of a judgment in a case at law is eliminated, and the distinction in designation in the earlier language between actions at law and those in equity is eliminated in recognition of the abolition otherwise of such distinction. Eg. Rule 2, Federal Rules of Civil Procedure, 28 U.S.C.A. The important constructional consideration is that the quoted portions of both the present section 1923 and the repealed section 572 have to do entirely with the final submission and determination of cases on their merits, and that under the current statute the docket fee taxable in consequence of that event, whether it is accomplished with or without a jury, or in a case formerly at law or in equity, is $20. But remanding an action whose removal has been improvidently attempted is not a determination of its merits on final submission.

It is not surprising that the reported opinions having any bearing upon the question are comparatively few and not of recent deliverance. Nor are they consistent or clearly and precisely decisive, regard being had to the revision of the judicial code effective September 1, 1948, and at the date of the remanding order.

In Josslyn v. Phillips, C.C.Mich.1886, 27 F. 481, it was held that on remand a docket fee should be taxed in the sum of $20, being "such a fee as is ordinarily awarded on the final disposition of a cause"; but that ruling was placed expressly on the duty of the court under the Act of March 3, 1875 (formerly Title 28 U.S.C.A. § 80), on remanding an action to the state court, to "make such order as to costs as shall be just." The writer of the opinion (District Judge, later Mr. Justice, Henry B. Brown) seems to have thought that by the clause last quoted "the statute must have intended to permit the court to impose a reasonable attorney's fee as a compensation to the party for his services in procuring the remand." And he conceded, also, that before the passage of the Act of March 3, 1875, the practice in his district had not supported the taxation of a docket fee in cases of dismissal for want of jurisdiction, to which, in the aspect under examination, remanding orders have some logical similarity.

In Smith v. Western Union Telegraph Co., C.C.Ind.1897, 81 F. 242 (a circuit judge concurring with the district judge announcing the ruling) the taxation of a docket fee on the remaining of a case was denied. There the court held that (a) the statutory authority for taxing a docket fee had reference to a "final hearing," which did not include action on a motion to remand; and (b) the judicial duty in a remanding order to "make such order as to costs as shall be just", was not broad enough to warrant the taxation of an attorney's docket fee. The opinion expressly rejected the reasoning of Josslyn v. Phillips, supra.

Several cases have followed, with some variations, the opinion in Josslyn v. Phillips, supra. Pellett v. Great Northern R. Co., C.C.Wash.1900; an action at law, 105 F. 194, held that, although the provision for a $20 docket fee upon trial with a jury was inapplicable, the provision for "such order as to costs as shall be just" warranted the taxation of some amount as an attorney's docket fee, and taxed $10 as upon a judgment in an action at law without a jury. The conclusion of the Pellett case was also reached in Riser v. Southern Railway Co., C.C.S.C.1902, 116 F. 1014; Acker v. Charleston & W. C. R. Co., C.C.S.C.1911, 190 F. 288; Bowens v. Chicago, Milwaukee & St. Paul R. Co., D.C.Wash.1914, 215 F. 287; and Western Union Telegraph Co. v. Louisville & Nashville R. Co., D.C.Tenn. 1913, 208 F. 581. The opinion rendered in the case just cited was delivered by District Judge, later Mr. Justice, Sanford. In Walsh's Adm'x v. Joplin & P. R. Co., D.C.Kan.1915, 219 F. 345, and Jones v. Delta Land & Water Co., D.C.Nev.1918, 258 F. 761, a like result was reached, but with more precise emphasis on two grounds of decision: first, that no attorney's docket fee was taxable under the provisions of the then operative statute dealing with "a trial before a jury, in civil * * * causes * * * or on a final hearing in equity"; and, secondly, that, in the course of making "such order as to costs as shall be just" on the remanding of an action, the court should treat the remanding order as a final disposition of the action in the federal court, and, therefore, as a "judgment is rendered without a jury," and, under the statute effective at the time, tax a docket fee of $10.

It will not have escaped attention that all of the reported cases supporting the taxation of a docket fee rest heavily upon the explicit inclusion in the former Title 28 section 80 of the words "and shall make such order as to...