Crowe v. Peaslee-Gaulbert Co.

WILSON, Circuit Judge. An appeal from an order of the District Court allowing certain items of costs in a replevin suit between the appellee and the appellant. The appellee brought an action of replevin to recover certain merchandise, to the possession of which it alleged it was entitled, of the alleged value of $35,000. Before the marshal was permitted to deliver possession to the plaintiff in the replevin suit, he was required under section 8 of chap. 247, G. L. Mass.; Wolcott v. Meed, 12 Metc. (Ky.) 516; Steur v. Maguire, 182 Mass. 574, 576, 66 N. [217] E. 706; Hamberger v. Seavey, 165 Mass. 505, 43 N. E. 297, to take a bond from the plaintiff in the penal sum of double the value of the goods, at an expense for a premium on a surety bond of $600. Failing to agree with the defendant on the value of the goods, appraisers were appointed by the marshal, who appraised the goods as of the value of $30,000. The goods were then in storage in the warehouse of the defendant, and pending their removal, which required several days, the marshal appointed a keeper at an expense of $45, and employed assistance in removing the goods and loading them into freight ears at an expense of $655. The case was heard, and the question, “Did the defendant wrongfully detain the goods?” was submitted to the jury for a special finding. " The jury answered this question in the affirmative, and the justice presiding ordered a verdict for the plaintiff and for one dollar as damages, whereupon judgment was entered for the plaintiff for one dollar as damages and its costs of suit. From this judgment no appeal was taken. On an application for taxation of co.sts by the clerk, a hearing was had at which both parties were represented. The defendant objected to the taxation of any costs under section 968, U. S. Rev. St. (28 USCA § 815), on the ground that the plaintiff recovered less than $500 as damages. The elerk held that the judgment was for the recovery of the goods as well as for damages, and the value of the goods having been appraised at $30,000, the ease was clearly within the jurisdiction of the federal courts and costs followed for the successful party, and proceeded to tax the costs according to the usual schedule of fees, so far as they were specifically applicable, and allowed such other items as he found to be in accordance with the practice in that court, and he deemed to be reasonable. Certain items claimed by the plaintiff as proper taxable costs were objected to by the defendant, viz., an item of $94.90 as a witness fee and travel for one Kelly from Kentucky to Boston; the sum of $45 as keeper’s fees; the sum of $600 as premium on the bond; and the sum of $655 for assistance in removing the goods from defendant’s warehouse. The elerk allowed the witness fee of the witness Kelly, he having filed the usual affidavit that the expense was incurred for the sole purpose of testifying in the ease, and also the premium on the bond on the ground that the plaintiff under the laws of Massachusetts was required to furnish it in order to prosecute his action. The clerk, however, rejected the two items for the keeper’s fees and for the expense of removing the goods from the warehouse. To this taxation of costs by the elerk, both parties filed objections with the District Court, the defendant assigning as reasons: The allowance of any costs and particularly to the items of $600 as premium on the surety bond; the plaintiff basing its objections on the ground of the rejection of the two items for the keeper’s fees and the expense of removing the goods from the defendant’s warehouse. The cause was submitted to the District Court on the clerk’s report of taxation of the costs and the objections thereto filed by both parties. The court thereupon sustained the clerk generally as to the allowance of costs in the action, and specifically for the allowance of the item for the expense of the surety bond, and also allowed the two items disallowed by the elerk for the keeper’s fees and the expense of removal of the goods. The case is now before this court on an appeal by the defendant from the rulings of the District Court. The right of the prevailing party in suits at common law in the federal courts to recover costs is now firmly established, unless prohibited or restricted by some federal statute. United States v. Minneapolis, St. P. & S. S. M. Ry. Co. (D. C.) 235 F. 951; Primrose v. Fenno et al. (C. C.) 113 F. 375; Merritt v. Merritt (D. C.) 20 F.(2d) 541; Sears, Roebuck & Co. v. Pearce (C. C. A.) 253 F. 960, 962. The appellant’s chief grounds of complaint against the allowance of any costs appears to be: That he never wrongfully detained the goods; that in replevin actions when the verdict is for the plaintiff, the only judgment under Massachusetts statutes and practice is for damages for detention and costs; and that section 968, R S. (28 USCA § 815), prohibits costs unless at least $500 is recovered as monetary damages. The appellant, however, is bound by the jury’s finding that there was an unlawful detention ; and while under the modem statutory action of replevin, when the verdict is for the plaintiff, the only judgment entered on the records is for damages for detention and costs, the issue which first determines the rights of the parties is: Who is entitled to the possession of the goods? If the plaintiff, is found to be entitled to possession and [218] there was unlawful detention, then he is entitled to retain the goods and to damages for detention and costs. By'his replevin action a plaintiff is seeking first to recover possession of his goods, and a verdict of the jury in his favor entitles him to retain them. Having recovered his goods, the only part of the verdict which may require execution to issue is the award of damages for detention and the recovery of his costs. A judgment for his damages for detention and his costs, therefore, is all that is necessary to he entered on the rolls of the court, and according to the common practice is all that is entered where the verdict is for the plaintiff. Section 6, chap. 261, Gen. Laws Mass. 1921; section 13, chap. 247, Gen. Laws Mass. 1921; Hallett et al. v. Fowler, 8 Allen (Mass.) 93, 94; 28 U. S. C. A. § 724. Matters off the record are no answer to the right of the plaintiff in this action to recover costs; nor — after suit is brought — to deny by answer unlawful detention and allege that the right of the plaintiff to possession of the goods was always conceded. The issue in this case under the pleadings was: Did the defendant, prior to the issuing of the writ, unlawfully detain the goods and so deny the plaintiff the right of possession? That was the issue submitted to the jury which was decided in favor of the plaintiff. • Upon the record, therefore, he forced the plaintiff to bring its writ of replevin to recover possession. Damages for detention in replevin actions are never made the ground for jurisdiction attaching, but always the value of the property sought to be recovered. Marden v. Starr (C. C.) 107 F. 199; Squire v. Robertson (C. C.) 191 F. 733; Way v. Clay (C. C.) 140 F. 352; Smith v. Adams, 130 U. S. 167, 9 S. Ct. 566, 32 L. Ed. 895. In Marden v. Starr, supra, the value of the property in dispute was $4,000, but the damages claimed for detention was only $200; yet the federal court held it had jurisdiction because of the value of the property in dispute. If the plaintiff has the right to have his action determined in the federal courts, because the amount of property in dispute is $3,000, as in a real action, replevin, or in proceedings in equity, and recovers property to the value of more than $500, it is no reason why he should not recover costs because he fails also to recover money damage to that amount, when it is not money damage that is the real issue, but the right to property. Obviously if in a replevin action it is the value of the property involved which determines a suitor’s right to seek his remedy in the federal courts, the value of the property actually recovered should determine his right to costs. Section 968, R. S. (28 USCA § 815), was evidently framed with this in view, as it is only when a plaintiff fails to recover the sum or value of $500 that he is not entitled to costs. Since the plaintiff in this action was seeking to recover possession of goods of the value of $30,000, and by the jury’s verdict recovered the right to retain them, clearly it is entitled to its costs. The only other question raised by the appellant’s assignment of errors is as to the amount of the costs and the several items to be properly allowed. The defendant before the District Court raised no objection to the allowance of the expense of the witness Kelly. His objection to the allowance of the expense of the surety bond was based on the ruling of the court in The Governor Ames Case (C. C. A.) 187 F. 40, but that case differs from this case in that the giving of the bond in that ease was optional and not a neeessary expense. While in some jurisdictions courts have followed The Governor Ames Case where the facts were similar, the authorities are not all in accord. See The Frankmere (C. C. A.) 278 F. 139; Jacobsen v. Lewis Expedition Co. (C. C. A.) 112 F. 73, 80; The Volund (C. C. A.) 181 F. 643; The Bencliff (D. C.) 158 F. 377. Under modem conditions and practice, bonds by surety companies have come to be the accepted and approved custom where bonds are required; and where the giving of the bond is compulsory, whether by order of court or by statute, the rule as to costs, in reason and authority, requires that premiums on such bonds are properly included in a bill of costs of the successful party. United Water Works Co., Ltd., v. Stone (D. C.) 29 F.(2d) 428; The Walter Adams (D. C.) 271 F. 358; Corporation, etc., v. Houlihan (C. C. A.) 184 F. 252, 254, 255. As to the allowance of the keeper’s fees and the expense of removal of the goods, the marshal was inquired by his precept to take possession and deliver the goods to the plaintiff. The contention that, under the contract or arrangement by which the defendant came into possession of the goods, he was not required to deliver the goods to the plaintiff at Louisville, Ky., in no way affects this item. [219] The expense is not for delivery in Kentucky, but for removing from the warehouse and loading on freight ears; the plaintiff presumably accepting possession when loaded on the ears. It does not appear that they could have been delivered to the plaintiff in compliance with the direction in the precept without necessary expense. If the objection went to the excessive costs, we think that must be held to have been passed on by the court below. Its unreasonableness was- not made a ground of objection below, and while it may seem large on its face, the District Court, having found it taxable, must be presumed to have found it reasonable. United States v. Minneapolis, St. Paul & S. S. M. Ry. Co. (D. C.) 235 F. 951, 955. It cannot be attacked here on that ground unless it is made to appear that it is ■so excessive that the finding of the court below was without any foundation in fact. The order of the District Court in taxing the costs is affirmed, with costs of appeal to the appellee.