O'Neil v. Kansas City, S. & M. R. Co.

• Citation: 31 F. 663
• Parties: O'NEIL v. KANSAS CITY, S. & M.R. CO. ARMSTRONG v. SAME. BARTHOLOMEW v. SAME. ALLEN v. SAME.
• Decision Date: 20 July 1887
• Court: U.S. District Court — Western District of Tennessee

31 F. 663

O'NEIL v. KANSAS CITY, S. & M.R. CO. ARMSTRONG v. SAME. BARTHOLOMEW v. SAME. ALLEN v. SAME.

United States Circuit Court, W.D. Tennessee.

July 20, 1887

E. B McHenry, for the application.

Newman Erb, contra.

HAMMOND J.

In the cases of Archer v. Insurance Cos., ante, 660 (decided at the April term, 1887,) I ruled that, under section 848 of the Revised Statutes, a witness summoned in several suits, and who attended under service upon him of subpoena in each suit, was entitled to his fees in all the cases, the parties being different; and that the fact that there was a common defendant, the plaintiffs not being the same, did not alter the rule. That was the sole question in those cases, so far as the fees of witnesses were involved. Here the defendant denies its liability under the judgments rendered against it in these cases to any one but the judgment plaintiff, and challenges the right of these two witnesses to make this application, as not being parties to the suit, nor seeking any relief or payment from the party at whose instance and for whose benefit the fees claimed were earned. In this and like applications the distinction between fees and costs has been entirely overlooked, the latter being an allowance, always given by statute, to the party for expenses paid or incurred in conducting his suit, while fees are compensation to an officer or witness or others for services rendered for the party in the progress of the cause. Strictly speaking, the prevailing party to a suit recovers as costs against his adversary, only the fees which he himself has paid, or is liable to pay, and hence the usual form of judgment was for the recovery, 'and his costs in this behalf expended. ' The claim for fees in a case, therefore, is only good and enforceable against the party to the suit for whom the services were rendered, entitling the claimant to compensation, and not against the losing party simply because the other party to the suit has a judgment or decree against him. Otherwise every witness, officer, printer, etc., having fees unpaid in a case, would be, equally with the winning party, judgment creditors against the losing party for the amounts severally due them.

Costs were not recoverable at common law, and were first given by the statute of Gloucester, (6 Edw.I.c. 1,) and are entirely regulated by statute as to both item and amount. The federal fee-bill act of 1853, which abolished all former practice and laws on the subject of fees and costs in the courts of the United States, prescribed the items composing a bill of costs to be taxed against the losing party. It appears as section 983 of the Revised Statutes, and 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, whereby law costs are recoverable in favor of the prevailing party, shall be taxed by a judge or clerk of the court, and be included in and form a portion of a judgment or decree against the losing party. Such taxed bills shall be filed with the papers in the cause.'

In Wooster v. Handy, 23 F. 49, 62, on a question between the parties of retaxation of costs, the clerk had disallowed the fees of a certain witness who had not been paid by the party in whose favor the taxation was had, and who had been paid in certain other similar cases; and Mr. Justice BLATCHFORD sustained the disallowance because the party claiming to recover for the fees did not show that he had paid the amounts to the witnesses; construing this statute to mean that the bill of costs could in this regard include only 'the amount paid.' The learned justice in his opinion says:

'If a party does not pay a witness either before or after he has testified, the presumption is that the debt is forgiven, unless the failure to pay is explained in such wise that the fee can be considered as if 'paid'; because both parties intend it shall be paid. Nothing of that kind here appears. Witnesses are generally paid in advance, or at the time, or soon afterwards; and where, as here, they are paid on one or more cases, and not in others, the evidence is strong that they are never to be paid; especially where the lapse of time is so great as here between the rendering of the service and the taxation.'

The witnesses making this application were not paid before judgment, nor have they been yet paid by the plaintiffs who summoned them, and the judgments were rendered some 18 months ago.

The law never intended that parties to a litigation in court should be allowed to make profit out of each other in the taxation of witness fees, and doubtless the provision in the statute just cited was to prevent any such...