J'EDERAL REPORTER, '. vol. 46.
MELLOR 'Ii. CoX.
(Otrtntit O()1l,rt, D. South Oarolina. .Tune 22, 1891.)
'ADMIRALTY-TAXATION OF COSTS.
A decree of a circuit court silJ;lply affirming a decree of the .district court in admiralty "with costs" means that' costs are to be paid by the losmg party. Where, in the the court, a was recognized as proctor for the successful party, he must. be allowed his cpsts, though there was DO entry of appearance by him within the time required by rule. In admiralty there can be but ODe dooket fee, though the case ,is appealed from the district to the circuit court.
In Admiralty. C. B. Northrop, for libelant. I. N. Nathans, for respondent. SIMONTON, J. The case comes up on the taxation of costs. The district court dismissed the libel, with costs. 45 Fed Libelant carried the case to the circuit court, and the decree of. the district court was affirmed, with costs. The: clerk has taxed a docket fee for Mr. Nathans, proctor of respondent; and to this libelant excepts. He bases his objections on these grounds: 1. That the decree of this. court is vague and uncertain in this: that it does not say who shall pay the costs. The decree of the district court is affirmed, simply "with costs." The rule is that the losing party pay the costs., To this rule the,..e are exceptions in ;admiralty. But when either of these colirts deBire to modify: the rule it says so. When the ffilIpression is used, "with costs," it means costs to the losing party, unless other words are used. In this case libelant appealed,. and his appeal wasdismissed.·He, must pay the costil. 2. Because there is no entry of appearance. by Mr. Nathans for appellee in the cirouit court, withiil the two first .days in term succeeding the filing of the appeal and proceedings and affidavit 0f service of notice thereof on hini; as required by rule 9, and that:libelant could thus proceed ex parte., Mr. Nathans, therefore" cannot get costs. Upon examining the docket of the circuit courtthe name of appears as proctor for respondent. f.It 'is aunlitted ,that he took part.in the discussion before the court, and the order is in his handwriting, signed by the circuit judge on his submission. He thus was recognized as proctor for respondent. No objection seemed to have been made at the hearing. He must be treated as the proctor and allowed his costs. 3. Because but one docket fee can be chargerl, and that for a final hearing. This docket fee has already been charged in the costs of the district court. I confess that I have some doubt on this point. But Judge TOUI"MIN, in a well-considered case, (The Lillie, 42 Fed. Rep. 179,) holds that there can be but one final hearing in admiralty, and
therefore but one doektlt fee. It is best that the practice be uniform, and this is followed. '. This objection is ·sustained. The clerk will correct the taxation of costs by striking out the item of $20 in the district court costs.
June 22, 1891.)
(Oircuit Court, D. South. Carolina.
ADMIRAL'l'y-TAXATION OF COSTS.
The district court ordered respondent to pay costs, and then dismissed the libel. Libelant appealed, and the decree was affirmed, with costs. Held, that libelant was to pay the costs of the circuit court and respondent those of the district COU1't.
In Admiralty. C. B. Northrop, for 1. N. Nathans, for respoudent.
SIMONTON, J. This case also comes up on taxation of costs. The district court ordered respondent to pay the costs, and then dismissed the libel. 45 Fed. Rep. 119. Libelant appealed. 'l'he circuit court affirmed the decree of this district court, with costs. . The clerk taxed $20 docket fee for Mr. Nathans, and libelant excepted. All of his grounds but one have been passed upon in the Case of Mellor, 46 Fed. Rep. 662. The libelant insists that as the circuit court affirms the decree of the district court, and that decree required respondent to pay costs, so he must pay the costs of this court. This is specious. The decree of the cuit court is in two parts. First, it affirms the decree of the district court. .It then fixes theoosts of that court on the appellant. The respondent will pay tne costs of the district court. But, as in the taxation of these costs a docket fee of $20 is charged, and we have concluded in the Mellor Case that this is error, the clerk of this court will eliminate this item, and his allowance of $20 to respondent's proctor in this court is confirmed.