Opinion
Evans, Evans & Folland, Dey, Hoppaugh & Fabian, and Walton & Walton, all of Salt Lake City, Utah, for plaintiffs.
Story & Steigmeyer and Wm. Story, Jr., all of Salt Lake City, Utah, for defendant Delta Land & Water Co.
FARRINGTON, District Judge.
Thirteen different cases were commenced by as many different plaintiffs in the district court of the Fifth judicial district, Millard county, Utah, against the Delta Land & Water Company. All were removed to this court on the ground of diversity of citizenship. The plaintiffs were all residents and citizens of California, while the defendant is a Nevada corporation. Motions to remand were made in 7 cases, argued August 5, 1918, and allowed August 31, 1918. By stipulation of counsel, motions to remand in the remaining 6 cases were submitted without argument October 23, 1918, and in each an order to remand was entered, with costs. The matter is now before the court on appeal from the taxation by the clerk of a docket fee of $10 in each of the 6 cases.
By section 824, Rev. St. U.S. (Comp. St. Sec. 1378), a docket fee of $20 is allowed in each case when a trial is had before a jury in a civil or criminal case; but in cases at law, when judgment is rendered without a jury, the docket fee is $10. The allowance of such a fee has been approved in the following cases: Pellett v. Great Northern Ry. Co. (C.C.) 105 F. 194; Riser v. So. Ry. Co. (C.C.) 116 F. 1014; Acker v. Charleston & W.C. Ry. Co. (C.C.) 190 F. 288; Walsh's Adm'x v. Joplin & P. Ry. Co. (D.C.) 219 F. 345.
It is considered that an order remanding a cause is a final disposition thereof in a federal court, therefore in the nature of a final judgment; and hence, within the meaning of the above-quoted statute, it may be regarded as a judgment rendered without a jury. True, there has been but one argument covering all 13 cases; but there were 13 different plaintiffs, each of whom was put to expense and inconvenience, and each, under section 37 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1098 (Comp. St. Sec. 1019)), is entitled to his costs. It is provided in that section that on remanding the cause the court shall make such order as to costs as shall be just. Here each plaintiff was represented by an attorney, who prepared and presented a motion to remand, and arranged to submit each motion to the court, and must attend to the re-entry of the cause in the state court. I am satisfied that the docket fee of $10 for such service is neither unreasonable nor unjust.
A similar question was disposed of in Goodyear D.V. Co. v. Osgood, Fed. Cas. No. 5,594. That cause was heard by the court under a stipulation embracing a large number of cases, and providing that the decree in one was to stand as the decree in all. An objection was made to a docket fee taxed in one of the cases, which was to abide the
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result in the pivotal case. The court overruled the objection, and allowed the docket fee.
The decision of the clerk allowing a $10 docket fee in each case will be sustained.