PECK, STOW &: WILCOX CO. V. l<'RAY.
PECK, STOW & WILCOX CO. v. FHAY et at (Circuit Court, D. Connecticut. February 27, 1809.)
COSTs-EQUITY-DoCKET FEE. Only one attorney's docket fee is taxable in an equity case. and that only on the final disposition of the case, unless ul,on motion for rehearing allowed, when an attorney's docket fee is taxable in favor of the prevailing party upon each hearing.
On Motion to Retax Costs.
This was a patent suit, brought for infringement of United States letters patent to Robert O. Ellrich, February 19, 188·1, for improvement in pawis and ratchets, in which a motion for injunction pendente lite was argued July 19, 1898, before the circuit court, which on July 22d filed an opinion (88 Fed. 784) granting the motion as to claims 2 and 3 of the patent. From the decree authorized by this opinion an llppeal was taken tlJ the circuit court of appeals for the second circuit, which on the 15th of November, 1898, rendered a decision reversing the decree of the circuit court, with costs of the appeal. 92 Fed. 1021. Upon the entry of the decree for CQsts in pursuance of the mandate of the court of appeals, the clerk of the circuit court taxed CQsts in favor of the appellants as follows, viz.: (1) Defendants' costs of appeal transcript to court of appeals; (2) appellants' costs in court of appeals, as indorsed on the mandate; (3) clerk's costs in the circuit court for filing and recording mandate of the court of appeals, and the decree thereon; (4) attorney's docket fee in the circuit court for the district of Connecticut, on the ground that a judgment for costs had been arrived at, which might be final. From this taxation complainant's solicitor appealed as to the last item, and the parties were heard on briefs.
92 FEDERAL REPORTER.
. Wm. E. Simonds, for plaintiff. A. 'M. for defendants. PER eCRIAM. An attorney's docket fee, under section 824, Rev. St. U. S., is only taxable upon final hearing, or upon a rehearing allowed upon the merits of the case, on demurrer to pleadings, and then only when such hearing disposes of the case. 'fhe decree in this case, although for costs, and authorizing execution, is final only as to an interlocutory motion.
DE ROUX et al. v. GIRARD et at (Circuit COUl't, E. D. Pennsylvania.
COSTs-FINAL HEAHTKG IN EQUITY-DOCKET FEE.
April 5, 1899.)
Where defendant demurred to a bill in equity on the ground that it did not connect her with the cause of action, and plaintiff filed a replication, and, before the issue of law was argued. plaintiff discontinued thc suit pUl'suant to a stipulation whereby defendant agreed to such a course, there was no "final hearing," within Rev. St. § 824, entitling defendant to a docket fee of $20.
Appeal from Taxation of Costs. Carrie B. Kilgore, for complainants. H. A. Ingram, for respondents. McPHERSON, District Judge. Among other defendants. this bill in equity was brought against Caroline G. HIIDsworth, who demurred upon the ground that the bill did not connect her with the plaintiffs' cause of action. The plaintiffs filed a replication, but the issue of law thus formed was neither argued nor decided; for within a few weeks the plaintiffs discontinued the bill ago.inst Mrs. Hunswnrth. Her counsel regards this disposition of the case as a "final hearing." within the meaning of section 824 of the Revised Statutes, and to be allowed the docket fee of $20. 'L'he decisioil8 are not in complete harmony upon the question what constitutes a final hearing; but we need not examine them now, fo·r it further appears that "Mrs. Hunswnrth signed the following stipulation: "I herebj a.gree to tllt' above discontinuance;" and this, as it seems to us, relieves the pending controversy of all difficulty. We think that the case was disposed of by consent of parties, and not by a.ny action that could be construed as "a hearing," either final or otherwise. So far as the docket fee of $20 is concerned, the appeal is sustained.