Riser v. Southern Ry. Co.
| Decision Date | 20 June 1902 |
| Parties | RISER v. SOUTHERN RY. CO. et al. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Johnstone & Welch and R. S. Whaley, for plaintiff.
T. P Cothran and B. A. Hagood, for defendants.
This is an appeal from a taxation of costs by the clerk. An action was brought against the defendant Southern Railway Company by Luther A. Riser, and there was joined as defendant with the Southern Railway Company Marion Rich, the conductor. The cause of action was for injuries to the plaintiff by reason of the negligence of the conductor in the management of the train of his codefendant, the railway company. The railway company filed a petition for removal to this court, on the ground of a separable controversy, and the cause being removed into this court was remanded after hearing. The sole question now made is what costs should be awarded the attorney of plaintiff. He claims a docket fee of $20. The third section of the act of congress of 1875 provides that the party seeking to remove enter into bond, as well for filing a transcript in the circuit court as for paying all costs that may be awarded by such circuit court if such court should hold that the suit was improperly and wrongfully removed thereto. Railroad Co. v. Swann, 111 U.S 379, 4 Sup.Ct. 510, 28 L.Ed. 462. In Josslyn v. Phillips (C.C.) 27 F. 481, the circuit court of the Western district of Michigan held that, under this provision of the act of 1875, the court remanding the cause could allow a docket fee of $20; the same docket fee awarded on the final disposition of a cause. On the other hand, in Smith v Telegraph Co. (C.C.) 81 F. 242, the circuit court for Indiana refused a docket fee in any amount, alleging as a reason that the practice in the entire Seventh circuit had uniformly disallowed any docket fee in such a case, and the court, referring to the decision in the Michigan case expresses a dissent from it.
So far as I am informed, no case has arisen in this circuit on this question. The question presented was a doubtful one, was elaborately argued on both sides, and some costs ought to be allowed. An order remanding the cause is not reviewable, and therefore is in the nature of a final judgment. I think it can very fairly be brought under the provisions of section 824, Rev. St. U.S., of a case at law when judgment is rendered without a jury.
Let an order be entered, allowing a docket fee of...
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Kramer v. Jarvis
...$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.......
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... ... The allowance of such a fee has been approved in the ... following cases: Pellett v. Great Northern Ry. Co ... (C.C.) 105 F. 194; Riser v. So. Ry. Co. (C.C.) ... 116 F. 1014; Acker v. Charleston & W.C. Ry. Co ... (C.C.) 190 F. 288; Walsh's Adm'x v. Joplin & ... P. Ry. Co. (D.C.) ... ...
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...of the cause, namely, a docket fee of twenty dollars. And in Pellett v. Great Northern Ry. Co. (C.C.) 105 F. 194, and Riser v. Southern Ry. Co. (C.C.) 116 F. 1014, was held, after reviewing the conflicting decisions in the Smith and Josslyn cases, that under the provisions of the Act of 187......
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Bowens v. Chicago, M. & St. P. Ry. Co.
...208 F. 581. The controlling cases, I think, on this issue, must be Pellett v. Great Nor. Ry. Co. (C.C.) 105 F. 194, and Riser v. So. Ry. Co. (C.C.) 116 F. 1014. In cases it was held that the federal court might and should, on remanding a case for want of jurisdiction, allow a docket fee of ......