Richter v. Magone

• Decision Date: 31 October 1889
• Citation: 47 F. 192
• Parties: RICHTER et al. v. MAGONE, Collector.
• Court: U.S. District Court — Southern District of New York

47 F. 192

RICHTER et al. v. MAGONE, Collector.

United States Circuit Court, S.D. New York.

October 31, 1889

Stephen A. Walker, U.S. Atty., and Thomas Greenwood, Asst. U.S Atty., for appellant, contended:

Comstock & Brown, for appellees, contended:

LACOMBE Circuit Judge.

Removal of Cases 120

This action was brought on August 29, 1888, in the superior court of the city of New York, to recover, with interest, the sum of $300, claimed to have been illegally exacted as excessive customs duties of the plaintiffs by the defendant as collector of customs, was removed on September 13, 1888, by the defendant by a writ of certiorari, from the said superior court into the United States circuit court for the southern district of New York, and on May 21 and 22, 1889, was tried in the last-mentioned court, and a verdict rendered therein for the plaintiffs in the sum of 22 cents. Thereafter both the plaintiffs and the defendant presented bills of costs for taxation by the clerk of the United States circuit court, the plaintiffs claiming that, as they were the prevailing parties, they were entitled to costs; and the defendant claiming that, as no United States statute determined whether the plaintiffs or the defendant was entitled to costs, he was, under the state statutes which give costs to the defendant when the plaintiff in actions like this action recovers less than $50, entitled to costs. The clerk refused to tax the defendant's bill, but taxed the plaintiffs' bill. The defendant thereupon appealed to the court.

(1) At common law, neither party was entitled to costs. Coggill v. Lawrence, 2 Blatchf. 305; Kneass v. Bank, 4 Wash.C.C. 106; Ethridge v. Jackson, 2 Sawy. 598.

(2) First, before the passage of the act of February 26, 1853 infra. Section 20, Act Sept. 24, 1789, (1 U.S.St.at Large, p 83,) provided 'that where, in a circuit court, a plaintiff in an action, originally brought there, or a petitioner in equity, other than the United States, recovers less than the sum or value of five hundred dollars, or a libelant, upon his own appeal, less than the sum or value of three hundred dollars, he should not be allowed, but, at the discretion of the court, may be adjudged to pay, costs. ' In the case of suits against any officer of the United States or other person, for or on account of any act done under the revenue laws of the United States, it was provided by section 3 of the act of March, 1833, (4 U.S. St. at Large, 633,) that such suit might be removed to the United States circuit court. The amount to be involved in such suit to entitle the defendant to such removal was not specified. That act provided that, after certain steps had been taken, the cause should thereupon be entered on the docket of said court, and should be thereafter proceeded in as a cause originally commenced in that court. No provision can be found in any statute that expressly gives costs to either party in such suit as last mentioned. Section 34 of the act of September 24, 1789, (1 U.S.St.at Large, p. 92,) provided 'that the laws of the several states, except where the constitution treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply. ' While these laws were in force, and in 1824, 1846, and 1851, respectively, the cases of Ellis v. Jarvis, 3 Mason, 457, and Hathaway v. Roach, 2 Woodb.&M. 63, and Coggill v. Lawrence, 2 Blatchf. 304, were decided, all of which cases (with the exception of the case of Coggill v. Lawrence, which is apparently overruled by those of Field v. Schell, 4 Blatchf. 435, and Scripps v. Campbell, 22 Int.Rev.Rec. 250) hold that, when not provided for by the United States statutes, the right of parties to costs in the United States courts are determined by the laws of the states.

(3) After the passage of the act of February 26, 1853, infra, and before the passage of the Revised Statutes, the laws already cited being still in force. Section 1 of the act of February 26, 1853, (10 U.S.St. 161,) provided 'that, in lieu of the compensation now allowed by law to attorneys, solicitors, and proctors in United States courts to United States attorneys, clerks of the district and circuit courts, marshals, witnesses, jurors, commissioners, and printers, in the several states, the following and no other compensation shall be taxed and allowed,' etc. Then follows a list of fees, etc. Section 3 of the same act provides that 'the bill of fees of clerk, marshal, and attorneys, and the amount paid printers and witnesses, and lawful fees for exemplification and copies of papers necessarily obtained for use on trial 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 in and form a portion of a judgment or decree against the losing party. The case of Field v. Schell, 4 Blatchf. 435, decided after the passage of the act of 1853, and in 1860, holds that in a suit commenced in a state court, and removed to a United States circuit court, if it be a suit in which the plaintiff would have recovered costs in the state court, if the suit had not been removed, he is entitled to recover costs in the circuit court, although, if the suit had been originally brought in that court, he would have recovered no costs.

(4) After the passage of the act of June 1, 1872, infra, and before the passage of the Revised Statutes, the laws already cited being still in force. Section 5 of the act of June 1, 1872, (17 U.S.St. 197,) provided 'that the practice, pleadings, and forms, and modes of proceeding, in other than equity and admiralty causes in the circuit and district courts of the United States, shall conform, as near as may be, to the practice, pleadings, and forms, and modes of proceedings existing at the time in like causes in the courts of record in the state within which such circuit or district courts are held, any rule of the court to the contrary notwithstanding. ' In the case of Ethridge v. Jackson, 2 Sawy. 598, brought in a state court, and removed to a United States circuit court, and decided after the passage of the act of 1872, and on March 31, 1874, the court, though the state laws on the recovery by the plaintiffs of a like amount to that recovered by the plaintiff in this case gave costs to the defendant, held that neither plaintiff nor defendant was entitled to costs.

(5) Since the passage of the Revised Statutes, June 22, 1874. Section 968 of the Revised Statutes (section 20, Act Sept 24, 1789, as re-enacted) provides that 'when, in a circuit court, a plaintiff in an action at law originally brought there, or a petitioner in equity, other than the United States, recovers less than the sum or value of five hundred dollars, exclusive of costs, in a case which cannot be brought there unless the amount in dispute, exclusive of costs, exceeds said sum or value, or a libelant, upon his own appeal, recovers less than the sum or value of three hundred dollars, exclusive of costs, he shall not be allowed, but, at the discretion of the court, may be adjudged to pay, costs. ' Section 643 of the Revised Statutes, (section 3, Act March, 1833, supra, as re-enacted,) as to removals to the United States circuit courts of suits against a collector in a state court, provides, as did said section 3, Act March, 1833, that upon such removal the cause shall thereupon be entered upon the dockets of the circuit court, and shall proceed as a cause originally commenced in that court. Section 721 of the Revised Statutes is section 34 of the judiciary act passed September 24, 1789, supra, re-enacted with one or two verbal changes, but without change of meaning. Section 823 of the Revised Statutes (section 1, Act Feb. 1853, supra, as re-enacted) provides that 'the following and no other compensation shall be taxed and allowed to attorneys, solicitors, and proctors in the courts of the United States, to district attorneys, clerks of the circuit and district courts, marshals, commissioners, witnesses, jurors, and printers in the several states and territories, except in cases otherwise expressly provided by law,' etc. Section 983 of the Revised Statutes (section 3, Act Feb. 26, 1853, supra) provides that 'the bill of fees of the clerk, marshal, and attorney, and the amount paid printers and witnesses, and lawful fees for exemplifications and...