Louisville & N. R. Co. v. Merchants' Compress & Storage Co.
| Decision Date | 25 March 1892 |
| Citation | 50 F. 449 |
| Parties | LOUISVILLE & N.R. CO. v. MERCHANTS' COMPRESS & STORAGE CO. |
| Court | U.S. District Court — Western District of Tennessee |
The bill in this case, with some 20 exhibits thereto, was filed December 3, 1891. It was simply an injunction bill to enjoin the defendant company from violating the provisions of a certain contract claimed to exist between the parties for the compressing, storage, and insurance of cotton; the prayer of the bill being stated in various forms to meet the different stipulations of the contract. The usual process of subpoena was issued the same day, requiring the defendant to appear etc., on the first Monday in January, 1892. On the day the bill was filed the plaintiff moved for a restraining order until motion for preliminary injunction could be heard, which was denied. It then moved for the preliminary injunction, and a decree was entered setting down the motion for hearing and argument on December 5, 1891, before the court, 'when and where the defendant is required to be present, and show cause, if any it have or know, why such preliminary injunction should not be granted. ' Notice of this motion and decree was issued, which, with the subpoena to answer was served on defendant the following day. The defendant entered its appearance by its solicitors on the day fixed when the motion for a preliminary injunction was fully and elaborately argued by counsel here and from a distant city and the matter taken under advisement for further consideration by the court. On December 11, 1891, the record shows that the parties again came before the court 'by their respective solicitors, when the cause came on for determination upon a motion of complainant for a preliminary injunction heretofore made herein, and argued at a previous day of the term; and the said motion, upon full consideration, is by the court hereby overruled, and the preliminary injunction denied. ' Afterwards, on January 19, 1892, after the day for defendant to answer, complainant moved the court for leave to dismiss the cause, 'which motion is, for satisfactory reasons to the court appearing, hereby granted, and this cause dismissed. ' Defendant did not demur to nor answer the bill, nor was a pro confesso entered at the January rule day. In taxing the costs against complainant the clerk has included an item of $20 docket fee to defendant's solicitors, and plaintiff moves to retax by striking out this item. The other items of the taxation are conceded to be correct. Section 983 of the United States Revised Statutes prescribes what shall be deemed 'costs' in the federal courts as between the parties to a suit. It is as follows:
'The bill of fees of the clerk, marshal, and attorney, and the amount paid printers and witnesses, and lawful fees for exemplifications and copies of papers necessarily obtained for use on trials, in cases where by law costs are recoverable in favor of the prevailing party, shall be taxed by a judge or clerk of the court, and be included and form a portion of a judgment or decree against the losing party.'
Sections 823-857, Id., prescribe the 'fees' taxable in favor of attorneys, court officers, jurors, witnesses, printers, etc., how they may be taxed and recovered, by whom and how paid, and the various regulations pertaining to the same in suits in which the United States is a party. The portion of section 824, Id., prescribing the 'fees of attorneys, solicitors, and proctors,' under which the taxation was here made, is as follows:
J. P. Houston, for the motion.
Metcalf & Walker, opposed.
HAMMOND District Judge, (after stating the facts as above.)
The question involved in this motion was first considered by me in 1883, in Goodyear v. Sawyer, 17 F. 2, where in six causes in equity the solicitor's docket fee was objected to. Answers were filed in all the cases, and replications in two of them. In one only had there been a decree upon the merits, and on account ordered, but this cause was afterwards dismissed by the plaintiff. In another of the cases the dismissal by the plaintiff was 'without prejudice;' in the third case the dismissal was by complainant at his costs, and in the other three cases there was no order or decree disposing of them, though plaintiff paid, or assumed to pay, the costs, and claimed that they had been dismissed in the clerk's office. Upon a full review of all the cases, and on examination of the law of costs in chancery suits in England, as well as in the federal courts of this country before the act of February 26, 1853, chapter 80, (10 St. at Large, pp. 161, 162,) from which the above-cited sections of the Revision were compiled, the taxation of the docket fees in all these cases was sustained, both upon principle and authority, although the reported decisions on the subject were found to be conflicting. Again, in 1886, the same question arose here in Partee v. Thomas, 27 F. 429, where, after the overruling of the defendants' demurrer to the bill, they answered, and before replication was filed the plaintiff died, and the cause was dismissed on motion of the defendants for want of revivor or of prosecution. As reported, the decision shows but a single cause, yet, as a matter of fact, there were eight similar cases brought at the same time by the same plaintiff against various defendants. Like demurrers were overruled in all of them with leave to answer, etc., but no answer was filed in any of the other cases. The taxation of costs was the same in all, including the solicitor's $20 docket fee, and a motion to retax was made in each case for the purpose of having the docket fee stricken out. Upon full consideration again of this subject these motions were overruled, and the taxation of the docket fees sustained. In the opinion in that case I said:
'I have not the least doubt that congress meant to give, in every equity and admiralty case, a taxed fee of twenty dollars, whenever and however it was finally ended, (with the single exception specifically mentioned in the statute,) and that it did not intend to merely provide a fee for the ceremony of trying the case before the judge on its merits, leaving all other services unprovided for, and without any fee at all, and devolving upon the court in these cases to determine, on facts not in the record, whether or not they were so far tried on the merits as to be charged for in the bill of costs; and thus substituting those words 'tried on the merits' for 'final hearing,' as used in the statute.'
Since this decision there have been but three cases reported upon the exact question: Wigton v. Brainerd, 28 F. 29, where the docket fee was denied in a suit dismissed 'for want of prosecution;' but the report does not show the facts, nor what, if anything, had ever been done in the case. In Central Trust Co. v. Wabash, etc., Ry. Co., 32 F. 684,-- an action to foreclose the mortgage on the defendant company, the property being in the hands of receivers,-- gilliland, by petition, intervened for damages from fire caused by a locomotive operated by them. On a reference to a master proof was taken and the claim established and allowed, but the petitioner was denied a docket fee to his solicitor because 'the hearing was had upon an incidental or collateral issue that arose in the progress of a foreclosure suit. ' In Ryan v. Gould. Id., 754, after bill, answer, and replication, the case was dismissed, without prejudice, on complainant's motion, with costs to defendants. The case arose in the southern district of New York, and Judge LACOMBE, in his opinion, says:
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