KREAGER V. JUDD.
(Circuit Oourt,8. D. Ohio, E. D. December 13, 1880.)
1. <';OSTS-WIlEN RECOVERABLE-CAUBE REMOVED FROM STATE TO CIDT COURT-SECTION 968, U. B. REv. ST.-In an action at laworig-
inally brought in a state court, and removed to the circuit court by the defendant, the amount ultimately recovered by the plaintift was, exclusive of costs, less than $500, ($312.46.) Buch a recovery would have entitled him to costs in the state court. Held, that the case is not within section 968, U. 8. Rev. 8t., and that the plaintift is enti·. tIed to costs: although, if the action had been commenced originally. in the circuit court, no costs could have been recovered. Field v. Schell, 4 BIatchf. 435. ElliB v. JOIrf}i,8, 3 Mason, 457.
SAME-EFFECT 011' CoUNTER
CLArn.-As to the effect upon the question of costs of the reduction of the recovery to below $500, by the allowance of a counter claim in an action originally brought in the circuit court, qU(JJre.
Motion to apportion costs. A. W. Train and F. Southward, for plaintiff. Bargar tt Vorheis, for defendant. SWING, D. J. In this case a verdict was rendered by the jury for the plaintiff for $312.!6. Counsel for the defendant now file a motion asking that each party be required to pay his own costs. Section 968 of the Revised Statutes provides: .. When, in a circuit court, a plaintiff in an action at law originally brought there, or a petitioner in equity, other than the United States, recovers less than the sum or value of $500, exclusive of costs, in a case which cannot be brought there unless the amount in dispute, exclusive of costs, exceeds said sum or value; · · he shall not be allowed, but, the discretion of the court, may be adjudged to pay, costs." If this case had been originally brought in this court, there would be no doubt that the plaintiff would not be entitled to costs in the case. But the suit was not originally brought in this cOl1rt; it was brought in the state court, and removed
'lfHepartcd by Messrs. Florien Giauque and J. C. Harper, of the Vineinnati bar.
from the state court to this court. If the case had continne<l in the state court, the plaintiff's recovery would have carried costs, for under the statute of ohio a plaintiff recovering in an action of this charaeter would recover costs. The case was re.moved t,o this court, and it is very clear that the statute which I have read does not apply to this case, for it expressly provides, "in an action at law originally brought in this court; .. this action was not originally brought in this court. . This question is not, however, a new one. It has been before the courts before, and such has been the determination of the courts whenever they have had the question before them. Field v. Schell, 4 Blatchf. 435; Ellis v. Janis, 3 Mason, 457. This case having been removed from the state court into this court by the defendant, and recovery had against him in this court for an amount which would have carried costs below, he would be adjudged to pay the costs in this court. There is another consideration in this case: that is, there was a counter claim in it; and had the case been originally brought in this court, and it had appeared by the verdict of the jury that the plaintiff, upon . his claim, would have been entitled to the recovery of more than $500, and also that by the verdict it was shown that th.e jury had found in favor of the defendant upon his counter claim, and that amount, being less than the plaintiff's claim.. and deducted from the plamtiff's claim, reduced it to less than $500, the question might still remain whether the plaintiff would not be entitled to costs. But that is not necessary to be decided in this case. The judgment will therefore be entered upon the with costs.
STATESV.Hus arid another.
(District Oourt, S. D. N6'W YorlG. No,vember, 1880.)
Where an execution ca. 8a. was served by the marshal in the county of New York, and the defendants held under arrest for' some time, and the action was subsequently settled by a compromise, the defendants paying the plaintiff a smaller sum than that specified ill the execution: . .Held, that the marshal is entitled to poundage .on the whole amount for which the !lxecution .. . That the new provisions contained iIi the New York code of civil procedure relating to sheriff's fees do not affect this question; That the rate of poundage should be that allowed the sheriffs in· the different counties throughout the state under 2 (N. Y.) Rev. St. 645, +33, and not the special rates allowed the sheriff in the county of New York.
S. L. Woodford,U. S. Dist. Att'y, and P. L. Butler, 4.sst. Dist. Att'y. for the United States. . H. W. Bookstave1', for the Mal'shal. CHOATE, D. J. In this case, after return of an execution against the property of the defendants unsatisfied, an execution against their persons was issued and served by the marshal, who held them under arrest for some time, when they gave bonds for the limits. The amount of the execution was. $48,605.47. Subsequently a compromise of $l5,OOO was accepted by the secretary of the treasury, and the plaintiff'lil. costs are payable out of this sum. The marshal's costs for serving the execution have been taxed at $875.30, being fee for Berving, 69 cents; poundage, 3 per cent. on $250, and 2 per cent. on $48,355.47. The plaintiff has appealed from the clerk's taxation. The question to be determined is whether the marshal is entitled to poundage on the sum collected or realized by the compromise, or on the whole amount for which the execution issued. By Rev. St. U. S. § 829, the marshal is entitled to the same fees and poundage for serving an execution as are or shall be allowed to sheriffs of the state for similar services. The question then is, what poundage is the sheriff entitled to?