He keeps the journal" swears 'witnesses, and otherwise conducts himself as clerk. He is included in the list of officers of court who cannot practice as attorney therein. Sections 748, 749. Clearly, he is not entitled to fees as a witness. He is excluded by section849, being an officer of the court, officiating therein. Mr. Simons is chief clerk of the marshal, and: is also deputy-marshal. He is employed with the other clerks of the marshal in k'eeping his !lCcounts with the government; and the records of the office. His title, "chieLclerk," is simply the designation given him by the marshal, fixing his relative position in that .office. As with, all the other clerks in that office; he holds his place at, the will of the lllarshal, was appointed by the marshal, and is paid by him under a private arrangement with him. These clerks have no claim on the governlllent at all for pay, and look entirely to the, marshal., U. S. v. Meigs,95 U. S. 748. When he selects or dismisses his clerks the marshal neither conl1ults the court, reports his action to the court, nor seeks any confirmation of his action. In no sense, then, are Mr. Simons and his fellow-clerks officers of the court. He is not within section 849 t because of the fact that he is chief clerk. He is also deputy-marshal; J?utbe has no reward or emolument differing from those of anyoiher deputy-marshal. He has no duties in and about the court when it is in session. He never comes into or waits on the court. He does not officiate therein. Let him have his fees as a witness.
and others v.
VJirc'l1ifOourt,E. D. Mi88ott'ri, E. D. October 29;1887.}
In.,alawc:ase. where there is a final trial before a.jui.-y, the attorney's docket , fee of$20 allowed by Rev St. U :S.§§ 823. 824. is always to. be taxed; and it is for the court to determine who is the prevailing 'party; The plaintiff in replevin recovered four-fifths of the property claimed. The verdict was set aside. and an'ew trial Ordered, !which .resulted· in ,a j udgI)lent that the plaintiff retain seven-eighths of the property replevied, and that he return to the defendant the remaining eighth. Held, that the plaintiff was the prevailing party, and that l1i8: counsel,wasentitled for each trialto the docket fee of $20 allowed by Rev. St. U. S. §§ 823, 824.
of costs. defendants.
A,·. Ot:t$tleman, for plaintiffs.
, N. Morrison, a question was
In the case of John:H. William3against JaF!pffY' tome yesterday relative to the' taxationof costa'inthatcase. The question is whethertheplain:tiffs' counselis entitled to one docket fee of$20,or to two docket fees of 820 each.
WIJ,LIAlors ti. MORRISON.
Tha suit is
an action in' replevin. It was! tried ttt,theOctober term, 1886, before a jury, and the plaintiff:recovered; ·about four-fifths of the property 0laimed. 28 Fed. Rep; 872. The verdict 'was afterwards set aside, ann a new trial granted. 29 Fell. Rep. 282.· It was tried again at the present term, and the plaintiff recovered 'a verdict for about sevenre eighths of the property claimed. Cross"judgmentsw entered in the case. There was a judgment in favor of the plaintiff th!lt he retain possession of that partof the property which the jury awarded to him, and a judgment fnfavor of the defendant that plaintiff restore to the defendant the other one-eighth of the property. Under sections 823, 824, Rev. St. U. S. ,plaintiff's counsel claims that two docket fees should he taxed. I find that in the Case of Dedekam v. Vase, reported in 3 Blatchf; 77, and decided by JUdges NELSON and BETTS, it was ruled that when a case had heen on the docket at one term, and was continued and tried at a second term, only one docket fee of $20 should be allowed. In the same case, before Judge BETTS, reported in 3 Blatchf. 153, after there had been a final hearing and decree in the case, and a docket fee of $20 taxed, there was a supplementary proceed-' ing, (it being an admiralty suit,) in which the libelant asked an order against the sureties in the stipulation tocompp.1 them to pay into oOl.lrt the amount of the stipulation, and a docket fee of $20 was taxed by the clerk on account of the hearing of the motion, which the court struck out, saying that the law allows but a single docket fee, and that on final hearing. Then, in the case of Iron &- Nail Co. v. Corning, 7 Blatchf.16, decided by Judge NELSON, it was remarked that a docket fee of $20 was "the highestcol'l1pensation allowed to a solicitor, and that it can be allowed but oncej" 'citing the case of Dedekamv. Vase, 3 Blatchf. 77 and 153. This last case, however, (the Iron &- Nail Co. v. Corning,) was an equity case, and· the report does not show whether there had been more than one final hearing. The inference is tllat a second docket fee of $20 had been claimed in the case on account of trial of sorne motion or proceeding incidental to the case, and not on account of a final hearing. Of course, ill that event, the docket fee of $20 claimed was not within the language of the statute, which only allows the charge on final hearings in equity and admiralty causes, and it was properly stricken out for that reason. The same remark may be made respecting the claims for a docket fee in the case of Dedekam v. Vase, 3 Blatchf. 77 and 153. In neither of those instances was,a claim made for a docket fee on account of a final hearing in the case. The remark, volunteered in each instance above cited, that a docket fee could be allowed but once in a cause, seems, to have been unnecessary. Inthe case of Schmieder v. Barney, decided by Judge BUTCHFORD when circuit judge, and reported in 7 Fed. Rep. 451, it appears ,that there were three trials. The first one resulted in a verdict for the plaintiff, and the other two resulted in a verdict for the defendant, and it was held in that caSe that a docket fee should be taxed' for a trial whether, theverdictstand& ,or is set aside, and that defendant's attorney inthait ' case was entitled·:t;o a docket foo of $20 for each ttiitl, the defendant be-
ing the prevailing party. Of course, the last decision cited fits the entcase, as there were two trials in the present case before a jury. It seems to me, also, that the statute does not make the docket fee to de-, pend upon whether the verdict rendered stands or is set aside. It allows compensation to the attorney for services rendered on each final hearing of a case, and, as there have been two trials in this case, two docket fees should be allowed. I was at first disposed to take the view that this case wlts distinguished from the case of Schmieder v. Barney, in that there were crossjudgments in this case, the plaintiff not having succeeded in maintaining his claim to all the property for which he sued. I think, however, that that view is inadmissible. The logical result of that view of the case would be that in this instance there was no prevailing party, and that no docket fee could be taxed. I think in a law case, where there is a final trial before a jury, a docket fee is always to be taxed, and that the .court must determine who is the prevailing party. In as the plaintiff recovered seven-eights of the property claimed, and as the defendant conteeted his right to any of the property, the plaintiff should be esteemed the prevailing party to the same extent as if he had sued for $800, and; had only recovered $700. A docket fee should be taxed for each trial, and it will be so ordered.
CENTRAL TRUST Co. OF NEW YORK and others tl. WABASH, ST. L. & P. Ry. Co. and others. (Intervening petition of GILLILAND.)
(Oirouit Cowrt, B. D. Mi88ouri. October 29, 1887.)
A Solillitor for an intervenor in an equity case. who prevails in such intervention;' is not entitled to a docket fee of $20, under the provisions of section 824 of, the Revised Statutes of the United States. .Such a termination of the intervening cause is not "a final hearing in equity," within the meaning of said statute.· .
A I!pecial mal!ter in chancery is not a "referee, "within the meaning of said statute.
. Such fees are not recoverable in such cases at common law, or under the statutes of the state of Missouri.
In such a case the intervenor is not entitled to recover a fee of $2.50 for each deposition taken and admitted in evidence, under said section 824 of the Revised Statutes of the United Statel. (Syllabus by (he Court.)
On the twenty-seventh of September, 1886, the intervenor filed his petition in the. above-entitled cause, claiming damages against the receivers for the burning of hay, fencing, and injury to meadow land, alleged l1ave been caused on the thirteenth day of August, 1886, by ,