Ryan v. Gould

Lacombe, J. In this case issue was joined by the filing of the usual replication, the pleadings consisting of bill, answer, and replication. After the cause was noticed by the defendant for final hearing, and in fact after it was called on the calendar, an order was made on the motion of the complainant dismissing the bill “without prejudice to the complainant’s, or his assignee’s rights, and with the usual costs to the defendants.” The clerk, upon taxation of defendants’ bill of costs, allowed a docket fee of |20. The question raised upon this appeal, is whether, under section 824 of the Revised Statutes, such docket fee is properly taxable. The decisions upon this point are numerous and conflicting. In the views expressed by Judge Hammond in Partee v. Thomas, 27 Fed. Rep. 429, I entirely concur; but the prior decisions in this circuit are controlling of the question here, and the docket fee must be disallowed. Manufacturing Co. v. Colvin, 21 Blatchf. 168, 14 Fed. Rep. 269; Andrews v. Cole, 20 Fed. Rep. 410; Worster v. Handy, 23 Blatchf. 112, 28 Fed. Rep. 49. The allowances made by the clerk for .certified copy of file wrapper, and contents of the patent in suit, and for certified copies of six other patents procured by the defendant to enable him to properly present his defense, are also covered by the decisions iii Woodruff v. Barney, 2 Fish. Pat. Cas. 250, and Worster v. Handy, 23 Blatchf. 129, 23 Fed. Rep. 49, and are disallowed.