United States v. Payne (147 U.S. 687)/Opinion of the Court

The assignments of error in this case relate to several petty items claimed to have been illegally allowed by the court below.

1. For making dockets and indexes, taxing costs, etc., in various suits, upon manufacturers' bonds under the internal revenue law, where issue was joined and testimony given, for which petitioner claimed three dollars in each case. Rev. St. § 828, allows a fee of three dollars 'for making dockets and indexes, issuing venire, taxing costs, and all other services, on the trial or argument of a cause where issue is joined and testimony given;' and two dollars for similar services 'in a cause where issue is joined, but no testimony is given;' and one dollar 'in a cause which is dismissed or discontinued, or where judgment or decree is made or rendered without issue.' Objection is made to the taxation of three dollars in this case upon the ground that it does not appear that the testimony was given 'on the trial or argument' of the cause. If the allowance depended upon the first clause alone, it might be claimed with reason that it would be no hardship upon a public officer, who is entirely familiar with the statute, to bring himself within its terms, and to make it clearly appear that the services were rendered on the trial or argument of the cause; but, as the second clause is limited to cases where issue has been joined, but no testimony is given, and as, in this case, the issue was joined and testimony was given, we think it a reasonable inference that it was the intention of congress to allow three dollars in such case, or that it may be assumed that the testimony was given upon the trial or argument of the case, as required by the first clause. This item should therefore be allowed.

2. For entering orders of court for alias fi. fa., and for venditioni exponas, one folio each. While a writ of alias fi fa. is ordinarily issued upon a simple praecipe, it is perfectly competent for the district attorney to apply to the court for an order for that purpose, and, if such an order be made, the clerk is clearly bound to enter it, and is entitled to his fee therefor, whether such order be necessary or not, or, indeed, whether the court had any right to enter it or not. The propriety of such an order cannot be tested upon the application of the clerk for his fee for entering it.

3. For making record entries of recognizances of defendants, and entering and filing said recognizances. Recognizances may be taken either in open court, in which case a record entry of the fact is made upon the journal, or by a separate instrument, signed and acknowledged before a proper officer. In the one case the clerk is entitled to a fee for making the entry, and in the other for drawing and filing the recognizance, (U.S. v. Barber, 140 U.S. 164, 166, par. 3, 11 Sup. Ct. Rep. 749,) but not for both. A deduction should therefore be made from this item.

4. For making docket entries and indexes in cases of sci. fa. and other proceedings, where issue was joined, but no testimony given. This item was disallowed upon the ground that docket fees were only taxable in 'causes,' and that a scire facias is not 'a cause' within the meaning of the section.

While a scire facias to revive a judgment is merely a continuation of the original suit, (Frierson v. Harris, 94 Amer. Dec. 223, notes,) a scire facias upon a recognizance, or to annual a patent, or for other similar purposes, is as much an original cause as an action of debt upon a recognizance, or a bill in equity to annul a patent. Winder v. Caldwell, 14 How. 434, 443; U.S. v. Stone, 2 Wall. 525, 535.

5. Items 8 and 9 are for entering orders approving the accounts of officers of the court, filing duplicate accounts and vouchers. All of these are allowable, under U.S. v. Jones, 13 Sup. Ct. Rep. 437, (just decided,) except the fees for filing vouchers, which should be disallowed.

6. Per diem fee for attendance on the district court with the jury commissioner in drawing jurors is disallowed upon the authority of U.S. v. King, 13 Sup. Ct. Rep. 439, (just decided.)

7. For entering separate orders of court excusing jurors, entering orders of court to issue subpoenas, entering order for alias capias. As these orders appear to have been made by the court, and the fees for entering them allowed by the court, the charges must be sustained.

8. Item 15, for making dockets and indexing, where no indictment is found, but the same is ignored by the grand jury, should be disallowed. 'A cause' in a criminal case is begun by filing an indictment which has been found, but not by one which has been ignored.

9. Item 20, for drawing recognizances of defendants, is allowed upon the authority of U.S. v. Barber, 140 U.S. 164, 166, par. 3, 11 Sup. Ct. Rep. 749.

This disposes of all the items involved upon this appeal, and the judgment of the court below is therefore reversed, and the case remanded, with instructions to reduce the judgment in conformity with this opinion.