Scatcherd v. Love

• Decision Date: 23 December 1908
• Docket Number: 1,806.
• Citation: 166 F. 53
• Parties: SCATCHERD v. LOVE.
• Court: U.S. Court of Appeals — Sixth Circuit

166 F. 53

SCATCHERD v. LOVE.

No. 1,806.

United States Court of Appeals, Sixth Circuit.

December 23, 1908

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

LURTON Circuit Judge.

This is a writ of error to reverse a judgement dismissing the suit and adjudging the costs against the plaintiff in error, who was the defendant below. The suit was begun in a state court and removed to the court below upon the ground of diversity of citizenship. The action was upon a contract to pay a commission for the sale of real estate. There was a jury, and a verdict in favor of defendant, Scatcherd. Upon a writ of error from this court the judgment upon this verdict was reversed and remanded to the Circuit Court, with direction to award a new trial. The costs were, under our rule, adjudged against the defendant in the writ. The opinion of the court is reported under style of Love v. Scatcherd, 146 F 1, 77 C.C.A. 1. Upon the mandate the court awarded a new trial and adjudged the costs of the writ of error as directed. At a subsequent term it was made to appear to the court that the defendant, Scatcherd, had paid to the plaintiff the sum of $5,000 'in full settlement of the claim,' and that it had been received and acknowledged as 'in settlement of the Scatcherd case. ' There was no evidence of any agreement in respect to the payment of court costs, other than such as may be inferred from the fact of the receipt of the sum of $5,000 as a full settlement of the 'claim' or 'suit.' The defendant, by counsel upon this situation, moved the court to adjudge all of the costs accrued against the plaintiff.

The judgment of the court upon this motion, and upon the facts as submitted, was as follows:

'In this suit the defendant's motion to adjudge costs herein against the plaintiff A. M. Love, having been presented and submitted on briefs, affidavits, and exhibits thereto, and it appearing to the court therefrom that the defendant, on the 21st day of May, 1907, acknowledged its liability herein by paying to the plaintiff the sum of $5,000, which sum was by the said plaintiff accepted as a composition of this cause, upon consideration whereof said motion is overruled and disallowed, and this suit dismissed, at the cost of the defendant. It is therefore ordered by the court that the plaintiff do have and recover of and from the defendant and his surety on his removal bond herein all the accrued costs, for the collection of which execution is accordingly awarded.'

There is no act of Congress requiring the taxation of costs against either party in an action at law, except in a few special cases, of which this is not one. Hathaway v. Roach, 2 Woodb. & M. 63, Fed. Cas. No. 6,213; Ethridge v. Jackson, 2 Sawy. 598, Fed. Cas. No. 4,541. An examination of the Revised Statutes and of subsequent legislation reveals no statute which defines a successful party in a civil action or awards to him a judgment for costs in such an action as this was. The practice in the Circuit Court has undoubtedly been to award the successful party his costs; but this has resulted from the fact that that is the requirement of state statutes and that such statutes are to be followed as rules of decision in civil actions at law under section 721, Rev. St. (U.S. Comp. St. 1901, p. 581), when the subject has not otherwise been regulated by Congress. In addition to the cases cited above, the cases of Ellis v. Jarvis, 3 Mason, 457, Fed. Cas. No. 4,403, Scripps v. Campbell, Fed. Cas. No. 12,562, Richter v. Magone (C.C.) 47 F. 192, Primrose v. Fenno (C.C.) 113 F. 375, and Shreve v. Cheesman, 69 F. 785, 788, 16 C.C.A. 413, consider this question. In Shreve v. Cheesman, cited above, this conclusion was assumed as well settled by the Circuit Court of Appeals for the Eighth Circuit in an opinion by Judge Sanborn.

At the common law each party was liable for his own costs, and the recovery of costs by one party against the other was dependent upon statute. Many cases are collected in 5 Am. & Eng. Enc. of Pleading & Practice, 110 et seq., in addition to the federal cases cited above. This has been the well-settled law in Tennessee. Gatewood v. Palmer, 10 Humph. 466, 468; Caldwell v. State, 2 Sneed, 490. The subject of allowance of costs has been thoroughly covered by statute in Tennessee, beginning with the act organizing the courts of the state passed by the first legislative assembly of that state. Acts 1794, p. 483, c. 1, Sec. 74. That section has been carried into the Tennessee Code of 1858 as sections 3197 and 3201, being sections 4938 and 4942 of Shannon's Revision of the Code.

Section 3197 awards to the 'successful party' in all civil actions full costs, unless otherwise provided by law. Section 3201 provides as follows:

'In cases of nonsuit, dismission, abatement by death of plaintiff, or discontinuance, the defendant is the successful party, within the meaning of the first section of this chapter.' But a case which does not come within any affirmative provision of the cost statute falls under the sound discretion of the court by force of another provision of the Code (section 3220 of the Code of 1858; section 4962 of Shannon's Code), which reads as follows:

'And if any case shall occur not directly or by fair implication embraced in the express provisions of the law, the court may make such disposition of the costs as, in its sound discretion, may seem right.'

This provision was held in Hite v. Rayburn, 114 Tenn 463, 85 S.W. 1105, to be the authority under which a Tennessee court might exercise a discretion when the case was not within the other provisions of the chapter...