LOUISVILLE A 5. B. 00. t1. ldERCHANTB'COIIPBESS A 8TOBAGB 00.
&: N. R.
Co. t1. MERCHANTS' COIIPRESS
(OircuU Court, W. D. Tenmuaee. March 25,1899.)
CQITI-DeonT FHa IN EQUITY-DISMISSAL 4J"I'BB RBIl'USAL OJ' PallLDnNABY Dro1IfClTION.
bill, the docket fee of 120 IlPOD. 1Ulal hearina is tuable for t.he I01ieitor of t.he preYalllng party.
If, after a decree refusing a preliminary Injunction, the plainti1r dismiss the
In Equity. Statement by HAMMOND, District Judge: The bill in this case, with some 20 exhibits thereto, wu filed December 3, 1891. It was simply an injunction, bill to enjoin the defendant company from violating the provisions of a certain contract claimed to exist between the parties for the compressing, storage, and insurance of cotton; the prayer of the bill being stated in various forms to meet the different stipulations of the contract. The usual process of subprena was issued the same day, requiring the defendant to appear, etc., on the first Monday in January, 1892. On the day the bill was filed the plaintiff moved for a restraining order until motion for preliminQry injunction could be heard, which was denied. It then moved fur the preliminary injunction, and a decree was entered setting down the motion for hearing and argument on Decembero, 1891, before the court, "when and where the defendant is required to be present, and show cause, if any it have or know, why such preliminary injunction should not be granted." Notice of this motion and decree was issued, which, with the subprena to answer, was served on defendant the following day. The defendant entered its appearance by its solicitors on the day fixed, when the motion for a preliminary injunction was fully-and argued by counsel here and from a distant city, and the matter taken under advisement for further consideration by the court. On December 11, 1891, the record shows that the parties again came before the court "by their respective solicitors, when the cause came on for determination upon a motion of complainant for a preliminary injunction heretofore made herein, and argued at a previous oay of the term; and the said motion, upon full consideration, is by the court hereby overruled, and the preliminary injunction denied." Afterwards, on January 19, 1892, after the day for defendant to answer, complainant moved the court for leave to dismiss the cause, "which motion is, for satismctory reasons to the court appearing, hereby granted, and this cause dismissed." Defendant did not demur to nor answer the bill, nor was a pro confe88o entered at the January rule day. In taxing the costs against complainant the clerk has included an item of $20 docket fee to defendant's solicitors, and plaintiff moves to retax by striking out this item. The other items of the taxation are conceded to be correct. Section 983 of the United States Revised Statutes prescribes what shall be deemed "costs" in the federal courts as between the parties to a suit. It is as follows: v.50F.no.6-29
"The bilI of fees of the clerk. marshal. and attorney. and the amount paid I pUycartiol)8 copiesQ,f paobtained" fd'r'use on trIals. in cases wMre by1aw costs ate 'teo coverable in favor of the prevailing party. shall be taxed by a judge or clerk of the court. an4!be jnc1iulied and,JlG!lml aportionofa jadgmeut or decree against the losing party." 'JS'eefidhs the "fees"taxaole i in favor o'f neys,icourlhOfficf/rs;iJjurors; witnesses, pr.inters,etc.,·how .they may' be tS:l[edarid Tecovered',l.lyWhOtll and'h6w paid';'and the <vario\l!l pertaining to the same in suits in which thA United States is It party. The portion of section 824, rd., the "fees of attorneys, solicitors, and proctors," under which the ,taxati9.n, was is as follows: in civil :Of before referees, or ,a ()r dock¥ fee dollars· ... · *'1\1 'Incases jUdgmentls rendered. wIthout a Jury. ten lbcases at Illw.'Where the'icause is discontinued. five dollars. WI
·,.,H.ua:!iolillJ:),Distriaf. Judge; (ajter8tating thefact8a8 i:ibooe.) The questiQn;rilil:ylU}'ed.io, tW.funotion wasfirst.considered by me in 1883, in (JfJOdynfhy..,Sawyer. 17 Fed. Rep.2 i, where in six causes in equity, the solicitor's, <locket. feeTwasobjected to. Answers,were filed in aU the intwoof,them.: In one only had there been a 12pdn ithE! meritsj'andan account ordered, but this cause was afterwardsidiamissed by.the ,plaintiff. In mlother of ,the cases the dismissal prejudice;" in the third case: the dismissal wall bY.flomp18linallt at his costs, and in the other three cases there was ooloJld"llr.0f' decree disposing of them,though plaintiff paid, or assumed tGptlYf. tJ:ie'OO8ts, and claimed that they had been dismissed in the clerk's oftioeJ Lllipon a full re"iewof all the cases, and on examination of the 1lll'W of.oosts.in chancel'ysuits. in England, as well aS'in the federal courts ofithuuKl.lintry before the act ofFebruary 26, 1858, chapter 80, (10 St. at Large"pp. 161,162,) from which the above-cited sections of the R,e.;. v.isiQuwete,IlQmpiled,thetaxation,ofthe·docket,fees·in all' these cases wassw:itained, both upon 'prinCiple.i1.nd !luthority,althongh the reported decisibnson the subjebtwere to be conflicting. Again, in 1886, the question al'QSILhere hi). Parlee v. Thdma8, 27 Fed. Rep. 429, where t , after the oyerruling of the defendants' demuTrer to the bill, they before replicatioD'was,'filed the plaintiff died, and the cause w.asdismissed on motion oftb.e,·defendants for want ofrevivol' or of, prosecution. As reported, the decision shows but a single cause, yet, as'." ,'matteri 'of fact,: there were eight 'Similar :cases brought at the same tiIEie, i by. thesalhclpla.intiff agMrtst various defendants. Like de.. mur.rerswercfOverrliledJ'jn a1l6fthem, with leave to answer; etc., but no answer was filed in'llnyof ,the other'cases. The taxation of costs was the same in all, including. the solicitor's $20 docket fee, and a motion to;retax was made itleachcase for the purpose of having the docket fee
LOUISVILLE &: N. R.CO.V. MERCHANTS' OOMPRESS &: STORAGE CO.
stricken out. Upon full consideration again of this subject these tions were overruled. and'the taxation ofthe docket fees sustained. In the opinion in that casel' said: . "Ihllve not the least doubt that conltJ'essmeant to give, fnevery equity and admiralty case, a taxed fee of twenty dollars, whenever and however it was finally ended, (withtbe single exception specitically,mentionedin the stat\lte,) and that it did not intend to merely provide a fee for the ceremony, of trying the case before, the judge on· Qledts, ieaving all other services unprovided for, and without any fee at all, and devolving upon the court in thl'se,caiws to determine, on 'facts not in the record, whether or not they wI're so far tried on the merits as to be charged for in the bill of costs; and thus substituting those \Vords ·tried on the merits' for · final hearing,' as used in the statute." Since this decision there!huve been but three cases reported upon the exact question: Wigton v. Brainerd,28 Fed. Rep. 29, where the docket fee was denied in a suitdisnlissed '1for want of prosecution;" but the report does not show the facts, nor what, if anything, had ever been done in the case. In Central Truat Co. v. Wabash, etc., Ry. Co., 32 Fed. Rep. action to foreclose the mortgage on the defendant company, the property being in the hands of receivers,--Gilliland, by petition, intervened for damages from ,fire caused by a locomotive operated by On a reference to a master proof was taken and the claim established and allowed, but the petitioner was denied a docket fee to his solicitor because "the hearing was had upon an incidental or collateral issue that arose in the progress of a foreclosure suit." In Ryan v. Gould, Id., 754, after bill, answer, and replication, the case was dismissed, without prejudice, on complainant's motion, with costs to defendants. The case arose in the southern district of New York, and Judge LACOMBE, in his opinion, says: "The decisions upon this point are numerous and conflicting. In the viewlI eX]lressed by HAMMOND in Partee v. Thomas, supra, I entirely concur; but the prior decis,ons in this circuit are controlling of the here, and the docket fee must be disallowed." Counsel for plaintiff here in his brief says: "It is my impression that the bill was not filed until after the application for a preliminary injuncwas refused." this his" impression" is entirely at variance with the facts oithe,case as shown by the record. Norcould the motion have been made even, or anyst,ep whatever have been taken in regard to it, or concerning the cause afall in any way, until after the bill was filed. Indeed, the very institution of an equity cause is the filing of complainant's bill. Sup. Ct. Eq. Rules 11 and 12. Even the subpama to answer only issues for such defendants as are named in the prayer for process, (rule 23,) "and if an injunction, or writ of ne exeat regno, or any other special order pending the suit, is required, it shall also be specially asked for," (rule 21.) It is wholly inconceivable how a plaintiff in equity could move for a preliminary injunction, or a court could act upon such a motion, in the absence of his 'bill showing what he wanted enjoined,or against whom he desired such inju.nction to operate. Rule 25 preScribes the practice" whenever an injunction is askedfoi' by the
'REPORTER. vol. 50.
bill,". and provides that;'.',special injunctions shall be grantable only upOD due noij(,1e to tpe other .party; by thE! court in term, or by ajudge thereof in vacation, after a hearing, which may be if the adverse party does not appelir at the and place ordered." . Evidently this cause was dismissed as a direet consequence of a denial to the plaintiff of ita motion' for this injunction. The only pbject of the bill, which was under oath,and drawn 'With the ulniost care and at great length, and fortified by many documents filed as, eXhibits, was to enjoin the defendant compress complUlY fr?m violllting the terms of aeertain Contract alleged to the Parties. Its suit for this purpose was presented to the court by the billin the strongest possible light; and the plaintiff, with good reason, no doubt, wisely concluded that, if a preliminary injunc:tion, could not be obtained upon its own showing, undefended by answer itsltdversary, it be useless to expect a perpetual injunction at 'the end of prolonged litigation. Such being the case, and the voluntary of the cause beillg the directl'esult of the action of the court ill. denyin,g the motion of the plaintiff, the reasoning in Goodyear v. Sawyer, aupra,and Partee v. Thomas, 8upra, will support the taxation of the fee to the solicitor here, although no answer or demurrer waaflled as in tpose cases respectively. 'And, indeed, in several of therepo;rtlldcases in which such docket fees were denied, the ruliJ;lgs seem tp hJlvebeen upon the grouI;ld that the termination of the particular case .was dnesolelyto the action of the parties, uninfluenced by, and not the result of, any action by the ,court therein. Thus in Coy v. Perkins, 13, Fed. Rep. 111, 112, where there was an appearance by defendant, who filed a demurrer to the l:!ill, which was never acted upon by: the court,:80 faJ: as the report shows, and afterwards the cause was dismissed by direction of complainant, the solicitor's docket was d!'llliElCl by PRA;Y, alld LoW,ELr.-, JJ.,but.the argument used there oel,'tainly':supports my ruling here·. Mr. Justice GRAY, in the @pini6n, . "We are of opinion that upon the face of the statute the intention of the Iegi$latureisroantJ:eat tlral; itis only where some question of law or fact in. volved in or, leadIng to the final disposition actually rnadllQf the case has been i1ubroitted. or atJeast presented to the consideration Of the court. that there can be said to bave been a final hearing which the taxation of a solicitor's or proctor's fee of $20; as, for instance. whera the oourt. on motion' and argument; dismisses for irregularity an appeal from the district court, as in the Clllle. before Mr. Justice NELSON, of Hayford v. Griffith, 3 Blatehf. 79; or where the plaintiff dIscontinues, after the court has substan. tially decided the merits ·of the casa, either by an opinion expressed at the hearing upon thep)erits.as in the case of The Bay City, before Judge BROWN. 3 Fed. Rep. 47, or by a previous interlocutory decree, as in Goodyear Dental VUZcanite 00. v. Osgood, Ban. & A.529.] decided by Judge SHEPLEY in February, 1877." .
So in the briefreport of Lock Co.v. 14 Fed. Rep. 269, it appears that the!plaintifi' discontinued the case after answer filed, and thesoli.citor's docket fee held not to be taxable, because I- there WI;lS lW .heariqg and decision, of the And in McLean v.
LOUISVILLE & N. R. CO; '/I.- M.ERCHAN'fS' COMPRESS & STORAGE CO.
(]lark, 23 Fed. Rep. 861, a demurrer to the bill had been overruled, with leave to answer. After the answer was filed, and while the case was pending upon. bill and aQswer,(as the report would seem to indicate,) the plaintiff applied for a taxation of this solicitor's docket fee against the defendant, and it was, of course, under all the cases, except perhaps in New York, properly denied, for the suit was still pending in the courts, the decree upon the demurrer resulting not in the termination of the cause, but its further litigation. Judge BROWN says: "But in determining what has been' a trial or final hearing' which will authorize the taxation of a docket fee, we think that regard should be had to the result of such hearing or trial, and that we should treat that only as a final hearing in law which is a flnal hearing in fact. Hence if, in this caSEl, the demurrer had been sustained, and the bill dismissed. the hearing of such demurrer would have undoUbtedly been a final hearing, within the meaning of section l:l24...
So in Mercartney v. Crittenden, 24 Fed. Rep. 401, a demurrer was overruled, and defendants answered, and subsequently plaintiff voluntarily dismissed his bill without prejudice. Judge SAWYER held the solicitor's docket fee not taxable, saying: "lIad there been a final decree entered upon the rUling on the demurrer, without further pleadinl(s, the hearing on the demurrer might well have been regarded as a ·final hearing,' contemplated by the act. But the decree dismissing the bill was not in consequence of the decision on the demurrer." And in Consolidated, etc., Co. v. American, etc., OJ., 24 Fed. Rep. 658, the solicitor's docket fee was not held taxable in a cause voluntarily dis, missed by the complainant after issue joined by answer and replication and before proof; but the dismissal was" without the determination of any question in the case by the court," and" before any hearing either interlocutory or final." In Andrews v. Cole, 20 Fed. Rep. 410, a final decree was obtained upon pro confesso without answer or demurrer, imd the court held this docket fee taxable, because" the consideration of the bill is a hearing, and is final when it results in the final disposition; of the cause." In like manner the docketfee was held taxable in The Akrt, 3 Fed. Rep. 620, where a: was seized in a proceeding in rem, and the case discontinued by libelant's consent, and the vessel released upon payment of his claim and costs before claim or answer by the owners. " Such a motion, [to release the vessel,] when granted, terminates the cause, so far as the vessel is concerned; and the hearing thereon is deemed a final hearing, within the principle of the case of Hayford v. Griffith, 3 Blatchf. 79," where the dismissal was upon a motion for an omission to file security for costs. n is not deemed necessary to further review the cases, as they are all cited in Goodyear v. Sawyer, suprn, and Partee v. Thomas, supra, though for a somewhat different purpose than in the case at bar; and in thus distinguishing them I do not wish to be understood as at all abandoning my opinion expressed in those two decisions, that this docket fee is taxable in every equity and admiralty cause, "whenever and however it was finally ended,"-that such was the intention of the statute, and its·
vol. 50·. reasotiaOle construction',; by:the geuera.l.law equity costs in, England, ,in :b.Ull coucta before the: fee.billactof1S53; and almostll11 the earlier cases urlder'the act, and many of thtdatei'" ones. But it is notJ;lecessary to detiide, this case alone upon that broad construction, since it falls equally) w<i'tilifu: thedistincnon, whi'ch 'seems to be well recognized, that whem tbeitetminuti<m of such suit is .the result or consequence of a ruling oLthe court' upon any question of law or fact properly presented for ;Inatter in what form, and, irrespective of the ofJhe pleadingS' Mt",l' bill Or libel filed, thesoHcitor's docket fee' of 820 is taxable with the other costs, whether the termination be by dismissal or otherwise, or obtained at the instance of one party or the other, or by the ,action ofthe court mero motu. Motion overruled.
v.' SIfuLER et az'
North OaroUna. Apri120, 1892.)
L RIIK9YAiL:Oll', JilIlT4TE,. " ",
. Aspebial' proceeding b:r an administrator to obtain a license to sell the .real estate of his intestate for the payment 01 debts Is within tbeact of congress providing for the re,moval of "any suic of a nature, at law or in equity," from a state to a f!lderal court, thouKh the federal court liould not have had original jurisdiction Of . . S. S.ulS..;.NATPRIIl 011' PROOBBDING-EQUITAIlLIIl JURISDIOTION. Tbough such proceeding be treated by the state court as equitable in its nature, yet, ,notpoming withinall1 pf.the heads of equitable jurisdiotion, it must, on removal, be placed on the .law docket of the federal court.
S. SAMIIl-W.UVBR OF OBJEOTIONS.
PBOOBBDING BY ADMINISTRATtON-8UB 011' REAL . . .
The proceeding having been removed on the petition of defendant, she thereby waived all questions pertaining to the jurisdiction of tbefederal court, except the total absence of jurisdiotion.·' .
to BAKE-LANDS 011' IN'rESTATII....SALBIIOB DIIBTS.
Lands pUrQhased by a defaultiug cashier with the funds of his bank, ane! caused by him to be to his wife, are not within Code N. C. § 1446, describing the real eS.ta1le 01a decedentwhioh may be sold for the payment of his debts on the application of his a4ministrator,aa being "all rights of entry and rights of action, and all other rights and interests in lands, tenements, and hereditaments, which he may devise, (lr by law would descend to his heirs, "sinoethe cashier never acquired any legal or. Ilqu,itable estate in the lands so purchased;
. . .
II. SU[JIl-FOLLOWING TRUST FuNDS.
In 8uoh cil8e plaintilf's remedy is. by an equitable prOoeeding to oharge the land in the hands,oithe wife with a tmst for the satisfaction of the ciaims of the bank; a form of relief:which cannot be by the fed!lral pourt in the present prooeeding.' . ' An allogatlon that intestate at tlie time of his death was entitled to a vestedremainder in fee of the residenQe place in which his Widow, the defendant, has a life estate; is sufficient as an allegatiGn of an estate in the intestate "which by'law would' to his heirs, ".within \laid section 1446, making the same liable for the payment of his debts. .
,At Law.!,Aspecial proceeding: by theplaintlff, as a.dministrator, to obtain a license to sell the lands of his intestate to procure assets for the payment of debts, commenced in Catawba superior court, and removed to this court by nonresident defendants. Motion on the part the