The Einar Beyer

W.D. Washington

The Einar Beyer

8 F.2d 316, 1925 U.S. Dist. LEXIS 1613, 1926 A.M.C. 147

CourtDistrict Court, W.D. Washington

DecidedOctober 26, 1925

DocketNo. 9488

StatusPublished

This text of 8 F.2d 316 (The Einar Beyer) is published on Counsel Stack Legal Research, covering District Court, W.D. Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

The Einar Beyer, 8 F.2d 316, 1925 U.S. Dist. LEXIS 1613, 1926 A.M.C. 147 (W.D. Wash. 1925).

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Opinion

NETERER, District Judge.

Under admiralty rule 7 the premiums, on stipulation of the parties to the suit, shall be taxed as costs. Attached to the cost bill are vouchers for the premiums paid by claimant to the surety company. This disposes of those items. Parkerson v. Borst, 256 F. 827, 168 C. C. A. 173; The Texas, 226 F. 897, 141 C. C. A. 501.

Proctor’s fees, under United States laws, are provided by sections 823, 824, R. S. (sections 1375 and 1378, Comp. St.). For proctor’s fees: “On final hearing in equity or admiralty, a docket fee of $20.00.”

Adjudications as to what constitutes a final hearing are not harmonious. A final hearing is said to be a disposition on its merits, in Smith v. Western Union Tel. Co. (C. C.) 81 F. 242, and a determination upon pleading’s and proofs, in Wooster v. Handy (C. C.) 23 F. 49; as used in removal cases, examination of facts in issue, Vannevar v. Bryant, 88 U. S. (21 Wall.) 41, 22 L. Ed. 476. Hearing must he final upon merits. Mercartney v. Crittenden (C. C.) 24 F. 401; The Grady (D. C.) 87 F. 483. The “final hearing” intended, no doubt, must be determinative of the case, and is distinguished from an interlocutory hearing arising in some preliminary question during its progress. Equity rule 1 recognizes this distinction. Hopk. New Equity Rules, p. 145.

I think Judge Wellborn was right in Carter v. Sweet et al. (C. C.) 84 F. 16. He said: “It is manifestly within the spirit, if not exact letter, of this rule to hold, as I do, that where there has been presented to the court for consideration any issue of law or fact, and the expression of the court’s opinion thereon, after hearing, results in a final disposition of the cause, although such disposition is a dismissal on motion of the complainant, the docket-fee is taxable.”

In the instant ease exceptions filed to the original libel were, after argument, [317]*317sustained. The exception did not go to the merits, but merely to the uncertainty and indefiniteness of the libel. An amended libel was filed, and an answer thereto, taking issue upon the allegations therein, and after the ease was assigned for trial a voluntary dismissal was taken without prejudice before the day of trial. It is manifest that the ruling of the court upon the exceptions did not result in a final disposition; it was an order upon a preliminary question during the progress of the case, and was interlocutory, as distinguished from a final hearing. The hearing on the issue raised by the pleadings was not final. This case is clearly distinguished from Albion Lumber Co. v. Inter-Ocean Trans. Co. et al. (D. C.) 240 F. 1019.

The motion is granted as to the proctor’s fees, and in other respects denied.

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NETERER, District Judge.

Under admiralty rule 7 the premiums, on stipulation of the parties to the suit, shall be taxed as costs. Attached to the cost bill are vouchers for the premiums paid by claimant to the surety company. This disposes of those items. Parkerson v. Borst, 256 F. 827, 168 C. C. A. 173; The Texas, 226 F. 897, 141 C. C. A. 501.

Proctor’s fees, under United States laws, are provided by sections 823, 824, R. S. (sections 1375 and 1378, Comp. St.). For proctor’s fees: “On final hearing in equity or admiralty, a docket fee of $20.00.”

Adjudications as to what constitutes a final hearing are not harmonious. A final hearing is said to be a disposition on its merits, in Smith v. Western Union Tel. Co. (C. C.) 81 F. 242, and a determination upon pleading’s and proofs, in Wooster v. Handy (C. C.) 23 F. 49; as used in removal cases, examination of facts in issue, Vannevar v. Bryant, 88 U. S. (21 Wall.) 41, 22 L. Ed. 476. Hearing must he final upon merits. Mercartney v. Crittenden (C. C.) 24 F. 401; The Grady (D. C.) 87 F. 483. The “final hearing” intended, no doubt, must be determinative of the case, and is distinguished from an interlocutory hearing arising in some preliminary question during its progress. Equity rule 1 recognizes this distinction. Hopk. New Equity Rules, p. 145.

I think Judge Wellborn was right in Carter v. Sweet et al. (C. C.) 84 F. 16. He said: “It is manifestly within the spirit, if not exact letter, of this rule to hold, as I do, that where there has been presented to the court for consideration any issue of law or fact, and the expression of the court’s opinion thereon, after hearing, results in a final disposition of the cause, although such disposition is a dismissal on motion of the complainant, the docket-fee is taxable.”

In the instant ease exceptions filed to the original libel were, after argument, [317]*317sustained. The exception did not go to the merits, but merely to the uncertainty and indefiniteness of the libel. An amended libel was filed, and an answer thereto, taking issue upon the allegations therein, and after the ease was assigned for trial a voluntary dismissal was taken without prejudice before the day of trial. It is manifest that the ruling of the court upon the exceptions did not result in a final disposition; it was an order upon a preliminary question during the progress of the case, and was interlocutory, as distinguished from a final hearing. The hearing on the issue raised by the pleadings was not final. This case is clearly distinguished from Albion Lumber Co. v. Inter-Ocean Trans. Co. et al. (D. C.) 240 F. 1019.

The motion is granted as to the proctor’s fees, and in other respects denied.

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8 F.2d 316, 1925 U.S. Dist. LEXIS 1613, 1926 A.M.C. 147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-einar-beyer-wawd-1925.

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