Western Union Telegraph Co. v. Louisville & N.R. Co.

• Decision Date: 06 January 1913
• Docket Number: 1,662,1,658,1,659,1,661,1,664.
• Citation: 208 F. 581
• Parties: WESTERN UNION TELEGRAPH CO. v. LOUISVILLE & N.R. CO. (five cases).
• Court: U.S. District Court — Eastern District of Tennessee

208 F. 581

WESTERN UNION TELEGRAPH CO. v. LOUISVILLE & N.R. CO. (five cases).

Nos. 1,658, 1,659, 1,661, 1,662, 1,664.

United States District Court, E.D. Tennessee, Northern Division.

January 6, 1913

Shields Cates & Mountcastle, of Knoxville, Tenn., for plaintiff.

J. B Wright and J. G. Johnson, both of Knoxville, Tenn., for defendant.

SANFORD District Judge.

These cases having been remanded to the State Court for want of jurisdiction and the costs awarded against the defendant, the clerk has taxed as part of the costs ten dollars docket fee in each case, and the defendant moves to retax the costs so as to disallow these items.

It was held by Judge Baker, Circuit Judge Woods concurring, in Smith v. Telegraph Co. (C.C.) 81 F. 242, that twenty dollars docket fee for plaintiff's attorneys could not be taxed under R.S. Sec. 824 (U.S. Comp. St. 1901, p. 632). I agree with this view. However, R.S. Sec. 823 (U.S. Comp. St. 1901, p. 632), impliedly provides that other compensation may be taxed and allowed attorneys 'in cases otherwise expressly provided by law. ' And section 5 of the Act of March 3, 1875 (18 Stat. 472, c. 137 (U.S. Comp. St. 1901, p 511)), brought forward into section 37 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1098 (U.S. Comp. St Supp. 1911, p. 146)), provides that a Federal Court on remanding a suit to the State Court 'shall make such order as to costs as shall be just.'

In Josslyn v. Phillips (C.C.) 27 F. 481, it was held by Brown, District Judge (afterwards Mr. Justice Brown) that under this provision of the Act of 1875 the Federal Court on remanding a case for want of jurisdiction could allow the fee ordinarily awarded on the final disposition 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, it was held, after reviewing the conflicting decisions in the Smith and Josslyn cases, that under the provisions of the Act of 1875 the Federal Court might, and should, on remanding a case for want of jurisdiction, allow a docket fee of ten dollars, by analogy to the fee allowed under R.S. Sec. 824, in cases at law when judgment is rendered without a jury. And it is to be noted that in the Smith case, while this was not done, the authority of the court to allow an attorney's fee was impliedly recognized, but the allowance not made chiefly because of the fact, as...