United States v. Bowden, 4035.
Decision Date | 28 April 1950 |
Docket Number | No. 4035.,4035. |
Citation | 182 F.2d 251 |
Parties | UNITED STATES v. BOWDEN et al. |
Court | U.S. Court of Appeals — Tenth Circuit |
Benjamin Forman, Atty., Dept. of Justice, Washington, D. C. (H. G. Morison, Asst. Atty. Gen., Paul A. Sweeney, Atty., Dept. of Justice, Washington, D. C., and Scott M. Matheson, U. S. Atty., Salt Lake City, Utah, were with him on the brief), for the United States.
No appearance for appellees.
Before PHILLIPS, Chief Judge, and HUXMAN and MURRAH, Circuit Judges.
On August 23, 1949, the clerk of the court below entered a default judgment against the Bowdens in favor of the United States for $153.93, being the balance due on a promissory note. On August 27, 1949, the clerk taxed costs against the Bowdens, but did not include the attorney's docket fee of $20 claimed by the United States. The District Court, on motion to retax the costs, refused to tax the attorney's docket fee.
28 U.S.C.A. § 1923 in part provides:
The former statute, 28 U.S.C.A. §§ 571 and 572, in part read:
Thus it will be seen that in the revision, the words "may be taxed" are substituted for the words "shall be taxed" in the former statute. (Italics ours.)
The use of the word "may" in a statute will be construed as permissive and to vest discretionary power, unless the context of the statute clearly indicates a purpose to use it in a mandatory sense.1
In proceedings in equity, the allowance and imposition of costs is a matter of discretion.2
The Federal Rules of Civil Procedure, 28 U.S.C.A., abolished the distinction between law and equity and provided for one form of action, to be known as a civil action. Rule 54(d) of such rules provides: 3
We are of the opinion that the revisers substituted the word "may" advisedly with the purpose of bringing the statute into harmony with the equity rule and Rule 54(d) and made the taxation of statutory costs a matter within the discretion of the court. The use of the word "shall" in the exception clause in § 1923 is not, in our opinion, significant. It simply prescribes the different amounts of costs, if costs in the discretion of the court are to be taxed.
While we entertain no doubt that the entry of the default judgment was a final hearing within the meaning of the statute, we conclude that the taxation of costs is a matter vested in the sound discretion of the trial...
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