Columb v. Webster Manuf'g Co.

76 F. 198, 1896 U.S. App. LEXIS 2873

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: September 18, 1896
• Docket: No. 325
• Status: Published

Opinion

PEE OUEIAM.

This is a petition by Frank Columb, who has sued out a writ of error to the circuit court of appeals from the judgment rendered against him at this term in the above-entitled cause. He has filed in this court his affidavit of poverty, pursuant to the act of July 20, 1892, c. 209 (27 Stat. 252), and now desires to be relieved from prepayment of a bill of fees rendered him hy the clerk of this court, as follows: *

Clerk's fees on disposition of cause:

325, Law, Columb v. Webster M’f’g Co.

Swearing witnesses . $1 70

Filings . 3 00

Docket entries . 0 00

Docket fee .. 3 00

Record . Í) 00

--- $22 70

Transcript of record, 234 fols., at .10 . 23 40

- $40 10

These fees cover the completion of the record in this court, and the copy thereof necessary for docketing the writ of error in the circuit court of appeals. A portion accrued before the affidavit of poverty was filed, and a part afterwards; trot onr construction of the second section of the act renders this fact of no importance, . as the clerk insists on the payment of the whole bill before delivering Columb the copy of the record. The clerk of this court was heard on this petition, and we have given it careful consideration. Looking at the remedial character of the statute, we are of the opinion that writs of error and appeals are within the construction to be given the words “any suit or action” which it contains. There is a reasonable doubt whether the affidavit of poverty provided for by the statute should not have been filed in the circuit court of appeals instead of in this court; but we will provide for that by the form of the order to be eni ered on this petition. Merely filing an affidavit in that court would not be effectual for present purposes, as that court has no summary jurisdiction over the clerk of this court. The statute provides no special remedy in the case of the refusal of any clerk or marshal to comply with its provisions. Perhaps, in' that case, an action fpr damages would lie at common law; but we have no doubt of our authority to compel our officers to comply with it by summary proceedings, such as are now asked of us. The statute is obscure in many particulars, and with the rest a question arises as to the meaning of the words “fees or costs,” found in it. We think, however, that this arises from the combination of two subject-matters in one sentence, and that it is to be construed distributively. “Costs” means “taxable costs,” to be recovered by the adverse party, and the statute intends that no security or deposit shall be required for these. “Pees” means, for the case at bar, the fees of the clerk in the strict sense of the word, and does not relate to Ms disbursements; and the courts hqve no power, under the act, to require him to make disbursements at the hazard of recovering them at some future time from a person who confesses himself pecuniarily irresponsible. The marshal for this district was heard generally on this petition, but our decision is not to be construed to affect his office, except as it must do so inferentially. And we will add that, in view of the revisory powers vested by the fourth section, the clerk should not ordinarily assume to act under the statute without prior conference with the Court. The clerk will be entitled at law and in equity to a lien on any judgment which Columb may obtain in the pending litigation, either in this court or in the circuit court of appeals. Looking at the statute as a whole, although it is somewhat obscure, and fails to make clear provision for the ultimate protection of officers affected by it, we are compelled to conclude that it applies to tMs case.

Ordered, that, on the petitioner filing in the circuit court of appeals a-proper affidavit of poverty, as required by the act of July 20, 1892, c. 209, and’ furnishing the clerk of this .court a certified copy thereof, the clerk shall deliver him the copy of the record in question, without payment of the fees covered by the petition, either in advance or concurrently with the delivery of the record; but this order shall not prejudice any right of action or lien for such fees.