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DE ROUX et al. v. GIRARD et al.

(Circuit Court, E. D. Pennsylvania.

April 5, 1899.)

No. 55.

Costs — Pinal Hearing in Equity — Docket Fee.

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 the suit pursuant to a stipulation whereby defendant agreed to such a course, there was no “final hearing,” within Rey. 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 Gr. Hunsworth, 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 against Mrs. Hunsworth. Her counsel regards this disposition of the case as a “final hearing,” within the meaning of section 824 of the Revised Statutes, and asks to be allowed the docket fee of $20. The decisions are not in complete harmony upon the question what constitutes a final hearing; but we need not examine them now, for it further appears that Mrs. Hunsworth signed the following stipulation: “I hereby agree to the 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 any 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.

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