Assistant Attorney General Van Orsdel and Mr. Philip M. Ashford for appellant.
Mr. Frank B. Crosthwaite for appellee.
Mr. Justice McKenna delivered the opinion of the court:
The claimant in the court below, appellee here, was clerk of the United States circuit court for the southern district of West Virginia from July 1 to July 6, 1902, and clerk of that court and the district court from July 16, 1902, to September 17, 1904. He regularly rendered accounts for such services, which contained, among other things, charges for 'separate docket fees in separate trials under one indictment.' The charges were disallowed and this suit was brought therefor in the court of claims. Judgment was rendered for claimant for the sum of $125.45, certain items being disallowed.
A counterclaim was filed by the United States for the recovery of $57. 90, charged for 'docketing judgments,' alleged to have been erroneously and unlawfully paid to claimant [204 U.S. 562, 563] by the accounting officers of the United States. The counterclaim was disallowed and the United States assigns as error the action of the court in rendering judgment for the claimant as aforesaid and overruling the counterclaim. In passing on the charge for the service the court of claims said:
The contention of the appellant turns upon the word 'cause.' The argument is that the word 'cause' is limited by the word indictment, and if it be returned against a number of persons and they be granted separate trials there is only one 'cause.' It is conceded that the court may grant separate trials, and it is not disputed that the court did so in the case for which the services sued for were charged and that each was separately designated on the records.
We think the order granting separate trials made separate causes, and therefore each was independent of the other. State v. Rogers, 6 Baxt. 563; Noland v. State, 19 Ohio, 131; Bryan v. Spivey, 106 N. C. 95, 11 S. E. 510. The services rendered were a proper charge under the statute.
2. The counterclaim was for the recovery of $57.90, charges [204 U.S. 562, 564] made for 'docketing judgments,' and the lists filed showed amounts from $0. 15 to $8.70. The court of claims' comment was: 'The defendant's counterclaim, predicated upon the alleged illegal allowance for the docketing of judgments, will have to be dismissed. The services here charged for were admittedly performed, by order of the court, and, under United States v. Jones, 193 U.S. 528 , 48 L. ed. 776, 24 Sup. Ct. Rep. 561, allowable.'
The case referred to is United States v. Jones, supra. In the absence of anything in the record to the contrary, we must assume that the application of that case was made on account of the facts presented to the court of claims in this. Counsel for the United States say that the findings of the court of claims 'on the subject of the counterclaim are not as full and complete as they might be.' A belief is expressed, however, that it appears, from the face of the counterclaim, that they are folio fees. At all events, it is insisted, that they are not the charges specified in paragraphs 10, 11, and 12 of 828 of the Revised Statutes. This the appellee concedes in effect, and urges that the charge was made under and is justified by paragraph 8 of that section, which reads as follows: 'For entering any rule, order, continuance, judgment, decree, or recognizance, or drawing any bond or making any record, certificate, return, or report, for each folio, fifteen cents.' The words we have italicized are the words upon which appellee relies, combined with the following order of the court:
The record required by that rule, appellee contends, is different from the various dockets which are kept in all United States courts in which brief entries of fact are made, and which, it is said, are covered by the docket fee. The contention is consonant with the decision of the court of claims, and we do not think it is refuted by the suggestions made by appellant.