Parkerson v. Borst
| Decision Date | 05 April 1919 |
| Docket Number | 3371. |
| Citation | 256 F. 827 |
| Parties | PARKERSON v. BORST. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Edwin T. Merrick, of New Orleans, La. (Merrick, Gensler & Schwarz of New Orleans, La., on the brief), for plaintiff in error.
E. J Bowers, of Gulfport, Miss., and D. B. H. Chaffe, of New Orleans, La., for defendant in error.
Before WALKER and BATTS, Circuit Judges, and GRUBB, District Judge.
Upon a former appeal this case was reversed and remanded to the District Court, to be there transferred from the equity to the law side of the docket for a retrial by a jury. Parkerson v. Borst, 251 F. 242, . . . C.C.A The plaintiff in error was the appellant and the defendant in error the appellee on the former appeal. Since the remand of the case to the District Court there has been no retrial of the case, and no final judgment has been rendered.
The case comes again to this court for the correction of supposed errors in the taxation of the costs of appeal, which were ordered by this court, on the former appeal, to be paid by the appellee. Two items of costs are in question: First, an item of $100, paid by appellant for a premium on the appeal bond upon the former appeal; second, an item of $104.25, paid for the services of a stenographer upon the hearing in the District Court on the motion to dismiss and upon the merits. The assignments of error may present other items, but the two mentioned were the only ones insisted upon either in the brief or in oral argument of the plaintiff in error. The very sufficient reason for not considering any of the items, other than the first-mentioned, is that the record shows that no final judgment has been rendered in the cause, and any assessment of costs of the District Court, save those of the former appeal, is premature. Until final judgment, the incidence of the costs is not determinable, and any attempt to adjudicate the correctness of the items, at the instance of one party, might be futile, since the moving party might not be adjudged, by the final judgment, to pay the costs, and hence would not be interested in their amount or legality. This is the view the District Judge took, and declined to render a judgment final in form for this reason. It will be time enough to hear plaintiff in error's complaint as to this item when, if at all, there is a final judgment in the main cause against her which adjudges her liable for the costs. This applies to all items except the premium paid for the appeal bond, which was disallowed by the District Judge.
Plaintiff in error contends that the amount paid for the premium for the appeal bond on the former appeal should be taxed as a part of the costs of appeal, which were adjudged against appellee on the former appeal. There is no statute or rule of court touching the question. There was no order of the District Court directing the making of a surety bond, or indeed, any bond. The District Court merely fixed the amount of the appeal bond, which was to operate as a supersedeas, leaving it to the determination of the appellant as to whether any and as to what character of bond she would give. Decisions in admiralty cases are therefore not in point. Taxable costs are made so either by statute, rule of court, or order of court in a specific case, or by established usage, the equivalent of a rule. No one of these methods is relied upon as authority for the taxation of the item contended for in this case. The plaintiff in error contends that the modern method is to give surety bonds, and that the expense of procuring them is a legitimate disbursement of the appellant. The propriety of a rule of court requiring that such items...
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Williams v. Sawyer Bros.
...Court has power by rule of court to declare what disbursements shall be taxed. The Texas, 226 F. 897, 905 (C. C. A. 1); Parkerson v. Borst, 256 F. 827 (C. C. A. 5); The Governor Ames, 187 F. 40, 41, 48 (C. C. A. 1). And a proved usage would probably have had the same force as a rule before ......
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...practice of this Court (citing McWilliams Dredging Co. v. Department of Highways of La., 5th Cir., 1951, 187 F.2d 61, and Parkerson v. Borst, 5th Cir., 1919, 256 F. 827); and, in fact, this Court's own Rule 312 "shows a clear intent * * * not to allow costs for or against the United States"......
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...(D.C.) 189 F. 416; Lee Injector Co. v. Penberthy Co., 109 F. 964, 48 C.C.A. 760; The Willowdene (D.C.) 97 F. 509; Parkerson v. Borst, 256 F. 827, 168 C.C.A. 173. ...
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...v. Penberthy Injector Co., 6 Cir., 109 F. 964. The Governor Ames, 1 Cir., 187 F. 40, 48; The Texas, 3 Cir., 226 F. 897, 905; Parkerson v. Borst, 5 Cir., 256 F. 827, are in accord, though in The Texas, supra, it was thought that a rule of practice to tax such premiums as part of the costs ha......