Opinion
Lewis & Lewis, for plaintiff.
Will H. Thompson and M. J. Gordon, for defendants.
HANDFORD, District Judge.
This case was remanded to the state court in which it was commenced, on motion of the plaintiff, for the reason that it is not a case of which this court has jurisdiction, and at first blush it would seem to be inconsistent for the plaintiff to invoke its jurisdiction by asking this court to render a judgment in her favor for costs. Ordinarily, a court which has not jurisdiction
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to determine the rights of the parties as to the main controversy between them is simply bound to let them alone, and to refuse its process for the benefit of either. Inglee v. Coolidge, 2 Wheat. 363, 4 L.Ed. 261; McIver v. Wattles, 9 Wheat. 650, 6 L.Ed. 182; Strader v. Graham, 18 How. 602, 15 L.Ed. 464; Hornthal v. Collector, 9 Wall. 560, 19 L.Ed. 650; Pentlarge v. Kirby (C.C.) 20 F. 898. The decision in this case, however, must be made with reference to the fifth section of the act of congress of March 3, 1875 (1 Sup.Rev.St. (2d Ed.) 83, 84), which provides that when a United States circuit court remands a case it 'must make such order as to costs as shall be just. ' In a decision by Judge Baker, concurred in by Judge Woods (Smith v. Telegraph Co. (C.C.) 81 F. 242), it was held that this statute does not confer authority to render a judgment for costs, including an attorney's docket fee, and the attention of the court appears to have been especially directed to an earlier decision, to the opposite effect, by Judge Brown, in the case of Josslyn v. Philips (C.C.) 27 F. 481. See, also, 18 Enc.Pl.& Prac. 381.
In view of the conflicting decisions above referred to, I have examined other authorities bearing upon the question, and have reached a conclusion in accord with Judge Brown's decision. The statute, in plain words and without any restriction whatever, requires the court, when a case is remanded, to make such order as to costs as shall be just. When a party brings an action into court, his adversary is subjected to inconvenience and expense, and has the right to have the professional services of an attorney to appear for him and defend his rights. Since the law requires the court, in the exercise of its discretion, to consider the justice of the case, when an attorney has appeared, and prevailed to the extent of securing an order relieving his client from all obligation to appear further, I can perceive no reason for refusing to allow such costs, including an attorney's fee, as by the laws of the United States may be taxed in other cases. In actual practice, the courts of highest authority have given effect to this statute by expressly commanding the circuit courts to remand nonremovable cases, and give judgments for costs against the parties held to be in fault for removing them. Torrence v. Shedd, 144 U.S. 527-538, 12 Sup.Ct. 726, 36 L.Ed. 528; Martin v. Snyder, 148 U.S. 663, 664, 12 Sup.Ct. 706, 37 L.Ed. 602; Mattingly v. Railroad Co., 158 U.S. 53-57, 15 Sup.Ct. 725, 39 L.Ed. 894; Craswell v. Belanger, 6 C.C.A. 1, 56 F. 529.
This being an action at law, and there having been no jury trial, and no depositions having been taken, the only costs which the plaintiff is entitled to recover are the statutory fees of the clerk for services performed at the instance of plaintiff, and a docket fee of $10, prescribed by section 824, Rev. St. U.S. Additional compensation for typewriting motions, pleadings, and notices is not allowed. The clerk will retain sufficient of the money advanced by the defendants to pay his fees for services performed at their instance, and it is not necessary to include such fees in the judgment. A judgment for costs will be entered in accordance with this opinion.