Stallo v. Wagner

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation245 F. 636
Docket Number195.
PartiesSTALLO v. WAGNER.
Decision Date06 July 1917

Rockwood & Haldane, of New York City (Charles A. Winter, of New York City, of counsel), for appellant.

Barber Watson & Gibboney, of New York City (Stuart G. Gibboney and George M. Burditt, both of New York City, of counsel), for appellee.

See also, 233 F. 379, 147 C.C.A. 315.

This cause comes here on appeal from certain orders of the United States District Court for the Southern District of New York which orders were dated respectively August 30, 1916, and October 10, 1916.

The complainant brought an action in the District Court for an accounting of certain transactions alleged to have been had between complainant and the Mt. Vernon National Bank. The trial lasted a week, and 550 pages of testimony were taken. The transactions involved were somewhat complicated, the claims aggregating in excess of $74,000. A transcript of the daily proceedings of the trial made each night by the stenographer was furnished the judge, who had requested that a copy of the evidence be submitted to him from day to day. Two other copies were furnished, one each to the complainant and defendant. At the conclusion of the trial a decree was entered, from which both parties appealed. When the case reached this court we held that the bill was without merit and remanded the cause, with directions to dismiss the bill with costs in both courts. Thereupon in due course the defendant served a bill of costs with notice of taxation of the same. The plaintiff objected to an item for $432.90, which was for the stenographer's fees for the minutes of the trial, the item being apparently for the copy of the minutes obtained for the use of the defendant in the conduct of the trial, the plaintiff having paid for the copies which had been furnished to himself and to the judge. The clerk on May 18, 1916, allowed the item to be included in the costs taxed. The complainant then moved the court for an order retaxing the costs of the defendant, and an opinion was rendered on August 30, 1916, reaffirming a previous ruling allowing the stenographer's fees to be taxed. Thereafter a motion was made for a retaxation, and on October 10, 1916, an order was entered nunc pro tunc as of June 16, 1916, and the taxation of the item was affirmed. Thereupon this appeal was taken from the orders.

Before COXE, WARD, and ROGERS, Circuit Judges.

ROGERS Circuit Judge (after stating the facts as above).

The question which counsel ask the court to determine in this case is whether in an equity suit the amount paid by defendant for a copy of the stenographer's minutes furnished him for use on the trial can be taxed as a part of the costs. The amount involved, $432.90, is not large, but the principle is important.

Costs were not recoverable eo nomine at common law. It is said, therefore, that costs can be imposed at least in law cases, only where there is statutory authority therefor. Stevens v. Boston Central National Bank, 168 N.Y. 560, 61 N.E. 904; Alger v. Boston, 168 Mass. 516, 47 N.E. 194; Studwell v. Cooke, 38 Conn. 549; Smith v. Boynton, 44 N.H. 529. The Legislature may grant the power in general terms to the courts, and these tribunals may make rules or orders under which costs may be taxed. It has been held that the power to do this has been granted by Congress. See Tesla Electric Co. v. Scott (C.C.) 101 F. 524, and cases there cited. We are not, however, concerned now to inquire as to the power of the federal courts to tax costs in law cases. For the question here comes up in an equity case. Nevertheless we observe that in cases at law where the right to tax costs is given, the courts have held that the stenographer's fees are not taxable as 'costs' except where the statutes so provide. Kelly v. Springfield R. Co. (C.C.) 83 F. 183, and cases there cited; Hughes v. Edisto Cypress Shingle Co., 51 S.C. 1, 28 S.E. 2; Bringgold v. City of Spokane, 19 Wash. 333, 53 P. 368; Down v. McGourkey, 15 Hun (N.Y.) 444.

It was enacted by 17 Rich. II, c. 6, that the chancellor should award damages according to his discretion against persons bringing vexatious and unfounded suits in chancery. And 'damages,' as used in this statute, has been understood as including costs. Since the enactment of the statute the power of adjudging costs has become apparently so far inherent in the equity court as to be inseparable from the exercise of its judicial authority. It has frequently been said that the power of a court of equity to give costs is wholly inherent in the court independent of any statutory authority, and solely according to the conscience of the court.

'This view,' it is said in Street's Federal Equity Practice, vol. 2, Sec. 983, 'is too radical to be considered orthodox, but it seems correct to say that the power of the equity court to allow costs, though originating in statute, has become a common principle and incident of its judicial action, so that the mere establishment of a court of equity and the endowment of it with judicial authority necessarily imports a power in such court to adjudge costs. This idea is fully exemplified in the history of the subject of costs as dealt with in the federal courts.'

And in section 1994 the same writer says that:

'No general proposition relating to costs is more thoroughly well settled than that in the court of equity costs are entirely within the discretion of the court. Costs in equity depend, so it is said, upon conscience, and upon a full and satisfactory view and determination of the whole merits of the case. This rule is applied in equity causes in the Circuit Courts of Appeals as well as in courts of first instance. The imposition of costs in equity is never determined by unbending rules of general application; and it has been observed that any attempt to prepare and enforce ironclad rules as to costs would more often than otherwise lead to injustice.'

Congress has enacted 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. ' U.S. Comp. Stat. 1916, Ann., vol. 3, p. 3223, Sec. 1624; section 983 of the Revised Statutes, p. 184.

And rule 50 of the existing equity rules (198 F. xxxii, 115 C.C.A. xxxii) is as follows:

'When deemed necessary by the court or officer taking testimony a stenographer may be appointed who shall take down testimony in shorthand and if required transcribe the same. His fee shall be fixed by the court and taxed ultimately as costs.'

Are the copies of the stenographer's minutes to be regarded as included in the clause 'copies of papers necessarily obtained for use on trial'? And does equity rule 50 mean anything more than that the fees paid for the copy of the minutes of the stenographer furnished to the court shall be taxed, and not the fees paid for the copy furnished to either of the parties?

In equity the matter of the imposition of costs is so far a matter within the discretion of the court of first instance that a decree relating to costs alone will not ordinarily be reviewed in an appellate court. Canter v. Insurance Co. (1830) 3 Pet. 307, 317, 7 L.Ed. 688; Elastic Fabric Co. v. Smith, 100 U.S. 110, 25 L.Ed. 547 (1879); Du Bois v. Kirk, 158 U.S. 58, 15 Sup.Ct. 729, 39 L.Ed. 895 (1895). But it has been held that an appeal lies when a decree complained of involves the construction and application of a positive statute involving the allowance of costs. This was decided by the Circuit Court of Appeals in the Sixth Circuit. In re Michigan Central R. Co., 124 F. 727, 733, 59 C.C.A. 643 (1903). This decision was followed by the same court in Scatcherd v. Love, 166 F. 53, 91 C.C.A. 639 (1908). So in Blanks v. Klein, 78 F. 395, 24 C.C.A. 144 (1896), the Circuit Court of Appeals in the Fifth Circuit, while recognizing the general rule that an appeal from a mere decree for costs should be dismissed, held that, as one item taxed was incurred in the appellate court, it would consider the matter. And in Kell v. Trenchard, 146 F. 245, 76 C.C.A. 611 (1906), the Circuit Court of Appeals for the Fourth Circuit entertained an appeal where the sole question presented arose upon the taxation of costs by the lower court in carrying out the decree and mandate of the Court of Appeals in the former appeal, and which prescribed that the costs in both courts should be borne equally between the appellant and the appellees. It was held that the action of the lower court in carrying into effect the decree of the Court of Appeals was subject to the review of the latter court.

In the instant case the disputed item is claimed under a statute, and also under equity rule 50 which has the force of a statute. The questions presented also arise upon the taxation of costs by the lower court in carrying out the decree and mandate of this court in the former appeal.

In Prescott & Arizona Central Railway Co. v. Atchison Topeka & Santa Fe R. Co., 84 F. 213, 28 C.C.A. 481 (1897), this court through Judges Wallace and Shipman held that, where a judgment dismissing the complaint 'with costs to be taxed' was signed by the judge and entered by the clerk, it was a final judgment. 'Nothing further was necessary,' it was stated in the opinion, 'to a final and complete disposition of the action. The circumstance that the costs were not taxed and the amount inserted in the judgment is not material. It was...

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    ...of equity and the endowment of it with judicial authority necessarily imports a power in such court to adjudge costs. Stallo v. Wagner, 245 F. 636, 638 (2d Cir. 1917) (internal quotation marks omitted). While this Court has implicitly adopted this rationale at times, the recognized exceptio......
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