Western Coal & Mining Co. v. Petty

• Decision Date: 05 September 1904
• Docket Number: 2,034.
• Citation: 132 F. 603
• Parties: WESTERN COAL & MINING CO. v. PETTY.
• Court: U.S. Court of Appeals — Eighth Circuit

132 F. 603

WESTERN COAL & MINING CO. v. PETTY.

No. 2,034.

United States Court of Appeals, Eighth Circuit.

September 5, 1904

Petty brought an action against the Western Coal & Mining Company and the St. Louis, Iron Mountain & Southern Railway Company to recover damages claimed to have been caused by their joint trespass upon his lands. The coal company answered specifically denying the trespass, and also alleging that Petty's cause of action was barred by the statute of limitations. The cause was dismissed as to the railway company for want of jurisdiction. Subsequently Petty brought an action for the same trespass in the state court against the railway company, and recovered a judgment, which was afterwards fully satisfied. Thereupon the coal company, by leave of court, filed an amended answer in the action which was still pending against it in the Circuit Court, in which it set up as an additional defense the recovery and satisfaction of the judgment in the state court against the railway company. Petty conceded this defense to be sufficient, and upon his motion the action against the coal company was dismissed, and the Circuit Court taxed against it all of the costs which had accrued prior to the filing of the amended answer. The coal company insisted that it was ready for trial, that it was entitled to have the other defenses set up in its amended answer determined, and it protested against the taxation of the costs. A judgment was rendered against the coal company for the costs so taxed, and from such judgment it prosecutes this proceeding in error.

Ira D Oglesby, for plaintiff in error.

T. P Winchester and W. R. Martin, for defendant in error.

Before SANBORN, VAN DEVANTER, and HOOK, Circuit Judges.

HOOK Circuit Judge, after stating the case as above, .

It is the general rule that the prevailing party in an action at law in a court of the United States is entitled as a matter of right to a judgment for costs. It must be admitted, however, that there is some question whether the acts of Congress so provide definitely and specifically. The nearest approach to a positive rule is found in section 983 of the Revised Statutes (U.S. Comp. St. 1901, p. 706), which provides that 'the bill of fees of the clerk, marshal and attorney and the amount paid printers and witnesses * * * 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. ' Notwithstanding the indefinite expression 'where by law costs are recoverable,' this section, with others upon the subject of fees and costs (Rev. St. Secs. 823-857 (U.S. Comp. St. 1901, pp. 632, 658)), has quite generally been accepted as sufficient authority for such a right in favor of a successful litigant. An indirect confirmation of this conclusion may be found in Act May 28, 1896, c. 252, 29 Stat. 183 (U.S. Comp. St. 1901, p. 617), as amended in 1897. Regulations were therein made concerning the fees and salaries of certain officers, and it was provided by section 17 'that sections 6 to 15 inclusive of this act shall not be so construed as to prevent or affect the amount or taxation of costs against the unsuccessful party in civil proceedings, or against defendants convicted of crimes or misdemeanors. ' The fragmentary character of the provisions of the acts of Congress upon this subject is due to the fact that they were framed in recognition of an almost universal usage in courts of justice of allowing costs to the prevailing party, rather than to any supposed necessity for affirmative legislation. In Kittredge v. Race, 92 U.S. 116, 121, 23 L.Ed. 488, Mr. Justice Bradley said: 'In actions at law it is a general rule that the losing parties, or the parties against whom judgment is rendered, are to pay the costs; and no apportionment of the costs is made between them. ' In United States v. Schurz, 102 U.S. 407, 26 L.Ed. 219, Mr. Justice Miller said: 'But a careful examination of the authorities leaves us no option but to follow the rule that the prevailing party shall recover of the unsuccessful one the legal costs which he has expended in obtaining his rights. ' See, also Trinidad Asphalt Paving Co. v. Robinson (C.C.) 52 F. 347; United States v. Treadwell (D.C.) 15 F. 532; Cooper v. New Haven Steamboat Co. (D.C.) 18 F. 588.

Was there anything in this case which removed it from the operation of the general rule? Petty sued the coal company, and afterwards abandoned and dismissed his action against it. Clearly, he was not the successful litigant, so far as that company was concerned. On the contrary, the coal company was the prevailing party. It does not follow that Petty had a good cause of action against that company merely because he recovered a judgment against the railway company in another action in the state court. If a plaintiff dismisses his action, a court will not stop to inquire as to the merits of his cause of action merely for the purpose of adjusting the costs. Nor does it follow that, because a plaintiff has a meritorious cause of action, he may voluntarily dismiss an action upon it at the cost of an objecting adversary.

In its original answer the coal company set up two defenses. It denied specifically that it was guilty of a trespass on Petty's lands, and it pleaded the statute of limitations. After Patty had sued the railway company, an alleged joint trespasser, in the state court, and had recovered judgment against it, and had accepted full satisfaction of such judgment, the coal company interposed an amended answer setting up the facts just recited, together with the first two defenses. Petty acknowledged the force of the new defense. Upon his...