· 660 FEDERAL. REPORTER.
ARCHER '11. HARTFORD FIRE INS. SAME '11. NORTH BRITISH
Co.' Co.
&
MERCANTILE INS.
(CirCUit (](Juri, W; D. Tennessee.
July 6, 1887.) TWO
1.
COSTs-DOCKET FEES FOR DEPOSITIONS-USE OF SAME DEPOSITION m SUITS.
Under the United States Revised Statutes, § 824, where.a.deposition, though written out but once, was taken by consent tobe read in two cases, entitled as of 'both, so filed and admitted in evidence on the joint trials of the same, held, that a taxation of the $2.50 docket fee for such deposition, in favor of the party prevailing in each suit, is authorized, no agreement to the contrary having been enterlldin,to. . .' .... .
2.
SAME-WITNESS FEES.
Ha witness be sUbpamaed.in two cases, the parties being different, to IW tend therei\l before the court, and testify orally, or before any officer pursuant to law, to give his deposition, and does so attend, heis'entitleq to the witness . fees prescribed by section 848 of the Revised Statutes. fOr his travel and attendance in each case. The fact that he actually testifies but once on the trial of the cases. together by consent, or that his testimony is but once written out in the deposition to be used by agr.eement in both cases, makes no difference; nor is theJ;ea distinctiOtl between witness fees for attendance "in court" and those "before any officer pursuant to law." , .
Motion of Defendants to Retax Costs. In these cases there were 41 "depositions taken by consent of parties, * * * to be used as evidence on the part of the defendant in each and both of the above-styled causes." The caption of the depositions is entitled as of both suits, and they are marked filed, and are docketed in both cases. The suits, by agreement, were tried together; the records, however, being in every way separate, with separate verdicts and judgments,and these depositions, were read upon the trial so had. The same counsel represented the 'common plaintiff in both cases, and both the defendant companies appeared by the same counsel. The clerk taxed in plaintiff's favor a docket fee of $2.50 on each deposition, in both cases making $102,50 against each defendant. Upon the taking of these depositions, the fees of plaintiff's witnesses for mileage and at:tEiDdance, amounting to. $31.-95 in each case, were claimed and proven before the officer taking the depositions, and have been allowed in the clerk's taxation. These witnesses attended before the officer. and gave their evidence in writing, und.er writs of subprena served upon them in each case, to so appear and testify therein. In the taxed billso! costs witness fees have also been allowed the plaintiff in the sum of $149.50 in each case, for like attendance and travel of other witnesses to testify orally in court, the same persons being witnesses in both cases. All these items are objected toas being excessive, because respectively taxed in more than one case. Tomlin & Haynes, for the motion. McCorry & Bond and Sweeney & Thompson, contra.
ARCHER. 'V. HARTFORD
FIRE INS.
CO.
661
HAMMOND, J.The statute provides for a docket fee "for each deposition taken and admitted in evidence in a cause, two dollars and fifty cents." Rev. St. U. S. § 824. These suits were originally commenced in the state court, and subsequently removed to this court, and the depositions in question were taken after the removal. In Jerma.n v. Stewart, 12 Fed. Rep. 271, counsel 'agreed that certain depositions taken and on file in another suit in the state court, between the same parties, might "be read and used in evidence on the trial" here; and I ruled, on a motion to retax the costs, where the clerk had allowed deposition docket fees to the prevailing party, that the taxation was correct. In the opinion it said that the statute" does not mean that the depositions shall and the fees allowed only for' such as are formally taken, but for those that are taken in any way, and admitted in e;idence. The use -of the deposition on the trial is what entitled the attorne;y to the fee. * * * This fee is not a part of the cost of taking the depmlition;.but, like the other docket fees, iS'an allowance to the attorney'as taxable costs for his professional-services in the, case,' and, unless the agreement of the parties waives it, it is as much taxabie as any other costs." ' , My attentionhasbeeu'Called to the case of Winegar v. Cahn, 29 Fed. Rep. 676, as a ruling against the allowance of the taxation here made. There is little similarity betweE'n the facts in the two cases. There the depositions were not taken in the case in which the docket fees were claimed, nor in a suit between the same parties, while here each deposition was taken in the very cause in which it was admitted in evidence. Nor is, there other than an apparent distinction between the decisions of Winegar. v. Cahn, supra, and Jerm.an v. Stewart, 8Upra.j and even that grows oilt of a mistake on the part of the learned judge in the former case of the facts in the latter. In his opinion SEVERENS, J., says: "From the report of that case it does not appear that Jerman, the plaintiff, in whose favor the attorney's fees were taxed, was a 'party to the former suit. Hence the depositions were not taken in his behalf, nor was he subject to the expense of taking them either for direct or crossexamination," whereas the statement of facts in that case shows (atpage 272) that the partie8 to the suit in which the depositions were taken and on file were:the same as those to that in which they were admitted in vidence, although reversed; Stewart, Gwynne & Co. being on one sidtl of both, and Jerman being plaintiff' in one and co-defendant with Hall in the other, and this will more fully appear by reference to the immediatelypreceding case of Jerman v. Stewart, 12 Fed. Rep. 266. Had this' fact been brought to the attention of the court, the ruling in Winegar v. Cahnwould doutless have been the same in principle as in Jerman v., Stewart;, as 'the reasoning and argument in _support of an apparently' different one seems to be based upon a mistaken similarity between the m.cts of the'iwq cases. ' In Wooster v. Handy, 23 Fed. Rep. 49, 63, where the facts a,ato this question were in aU 'respects identical to those here, Mr. Justiea BLATCHl<'ORD allowed the docket fee for each of the 172 depositions, in every
662
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one of .the several suits in which they 'respectively entitled and admittod in evidence, though each deposition was only once written out; . the opinion· using this language:' "It·was. for the parties to agree thatthe fee should .be taxed but 'once for the group of cases, if that was to be the rule. " Otherwise the fee was taxable, !,>ecause the deposition was in each case, .although the writing was not repeated for each case." with the ruling of the learned justice. It comeS as well I quite 'Within the. yery literalism oithe statute as within its spirit and meaning, and I ca:t;l find nO case, since the original enactment of our fee-bill in 18053, which has eyer held otherwise in principle, ol'upon similar facts. The clerk's taxation is therefore approved, anda:retaxation of these items denied. His allowance, of the witness _ fees is also proper,' statute gives "for each day's attendance in court, or before any officer pursuant to law, one dollar and fifty cents, andfi"e cents a mile froUl going from his place of residence to the place oftriaJ or hearing, and five cents a mile .for returning. When a witness issubprenaed in more than one caUse between the same parties, at the same court, only one travel fee and one per diem compensation shall be allowed for attElJ:lrlance;" the section providing how shall be taxed. There is no dispute but that the di$tances charged for were actually traveled by the respective witnesses, and the attendance as charged and proven upon oath. is admitted. In determining It similar question in Wooster v. Handy, gupra, the court in its opinion says the statute means that he is, entitled to" his prescribed witness fees "in each suit in which he attends," and demonstrates. that. the special provision for a witness "subprenaed in more than one ,cause between the same parties, at the same court," does not apply "where he attends in morethlln one cause between different parties, .and where only one of the parties is the same." Obviously this is correct, and cases need not be cited to the proposition that a witness subprenaed in more than one case in the court is entitled to his fees in each, the parties being different. Indeed, but for ·the provision in the statute cited,· he would be so entitled. irrespective of the parties to the suits in .which he attends as a witness under process. Parker: v. Bigler, 1 Fish. Pat. Cas. 285. So, also, when one attends as a juror and witness at the same time, in the same court. Edwards v. BondI 5 McLean, 300. Nor is there any distinction in fact, as counsel seem to suppose, or in the. statute, between attendance "in court," and "before any. officer pursuant to law," so far as the fees. pertaining thereto, and due to the witnesses therefor, are concerned. The statute cited treats- the fees for each acter of attendance just the same, and in terms negatives any such distinction as.if;! here claimed. The parties or their -counsel should look to the economies of the case during its preparation for trial, and count the· costs while it is in progress, taking the necessary steps to prevent useless expense before taxation rather than afterwards. . It follows that. the motion to retax must be denied.
