Kansas City, Ft. S. & M. R. v. McDonald

60 F. 522, 9 C.C.A. 129, 1894 U.S. App. LEXIS 2114

• Court: Court of Appeals for the Eighth Circuit
• Decided: March 2, 1894
• Docket: Nos. 85 and 86
• Status: Published

Opinion

PER CURIAM.

A motion is made in each of these cases to retax the costs in this court, and to strike from the costs taxed by the clerk against the plaintiff in error the $20 attorney’s fee he allowed. The order of this court was that the judgment of the court below be affirmed, with costs. It has been the uniform practice of the supreme court, in cases where a judgment is affirmed, to tax an attorney's fee of $20 against the plaintiff in error. The rule of this court upon this subject is a literal copy of that of the supreme court. It is: “In all cases of affirmance of any judgment or decree in this court, costs shall be allowed to the defendant in error or appellee, unless otherwise ordered by the court.” Rule 24, subd. 2, of supreme court rules; rule 31, subd. 2, rules of this court. The act of congress by which this court was established provides that “the costs and fees in the supreme court now provided for by law shall be costs and fees in the circuit courts of appeals.” 26 Stat. 826, § 2.

We are of the opinion that the fact that the highest judicial Iribunal in the land has uniformly allowed this attorney’s fee under a. rule identical, as far as it relates to this subject, with that in this court, was sufficient evidence that this item was a part of 'The costs and fees in the supreme court provided for by law” to warrant our clerk in allowing it, and the motions are accordingly denied.