BAKER
V.
HOWELL.
113
BAKER et aZ. v. HOWELL et (Cf,rcuit Court, D. Nebraska.
at
December 4, 1890.)
COlTRTs-J"URISDICTJONAL AMOUNT-PROTEST FEES.
Protest fees are taxable costs within Rev. St. U. S. § 983, providing that "lawful fees for exemplifications and copies of papers necessarily obtained for use on trials" shall be taxed as costs; and though Compo St. Neb. c. 41, § 6, provides that the holder of a note may bring" an action for principal, damages, and interest, and charges of protest, .. yet such fees for protest cannot be considered as part of the "matter in dispute"withinActCong. March 3, 1887, S1, (24 St. 552,) as corrected by Act Cong. Aug. 13,1888, (25 St. 434,) restricting the jurisdiction of the United States circuit court to suits "where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of 12,000."
At Law.
Gregory, Day & Gregory, for plaintiff. E. M. Bartlett, for defendant. Before CALDWELL and DUNDY, JJ.
CALDWELL, J. The act of congress of March 3, 1887, § 1, (24 St. 552,) a8 corrected by Act Aug. 13, 1888, (25 St. 434,) restricts the jurisdictionof this court, in respect to the amount necessary to give jurisdiction, to suits" where the matter in dispute exceeds, exclusive of interest 'costs, the sum or value of two thousand dollars." This suit is founded on a promissory note for the sum of $2,000, and is brought against the makers and indorsers. The petition contains an allegation "that the notary fees for the due presentation and protest of said note were and are of the full sum of three and 50-100 dollars, which the plaintiffs were required to pay, and did pay;" and this is set up and relied on as an additional substantive indebtedness to make the matter Ll dispute exceed $2,000. The question for decision is, are the fees to be treated as "costs," within the meaning of that word as used in the act of congress, or as an independent substantive debt, whicr may be used to increase the sum of "the matter in dispute." The stat ute of this state provides that the holder of any note may "an action for principal, damages, and interest, and charges of protest against the drawers, makers, and indorsE'rs" of the same. Camp. St. Neb. c. 41, § 6. The act regulating and establishing the fees of public officers in this state fixes the fees of a notary for each protest, recording the same, and giving notice of protest, (Id. c. 28, § 19,)and makes his certificate, that he demanded payment and gave notice of non-payment, presumptive evidence of these facts, (1<1. c. 61, § 6.) The sum paid by the plaintiffs to the notary was for an official service performed by a public officer for a fee fixed by statute. This official act was a necessary step to be taken by the plaintiffs to fix the liability of the indorsers, and to perpetuate and procure record evidence of their cause of action against them. It is true thattbe demand of payment may be made, and notice of non-payment given, by any person competent to testify as a witness, but in such a case there is always the danger that the witness may v,44F.no.2-8
114
FEDERAL REPORTER,
v;o1. 44.
die, or that he cannot be found when wanted to prove the facts. The law, therefore, wisely makes provision fQrhaving this service performed by a publio officer, who is required to keep a record of his official action, and this record the law of this state makes presump,tive evidence of the facts therein stated. It is the making of this record that entitlei:1 tO,the fees provided by law.. He is entitled to no fees unhetriakes this record; 'and,wl'1en'the holder of protested paper -pays these fees, he is entitled tf!r have them taxed as p'art of his costs, juilgment on the lil'otested Dote. The costsQfprotest are recovery {lD the protested note, and are no part of the They are of the "matter !n dispute" as to give the court jurisdiction by increasing the amount involved., It ,is an error to suppose that no expense is taxable as costs save such as is incurred after suit brought. All expenses incurred by the plaintiff in procuring and perpetuating evidence 'of ;his. demand agaihstthe defendant before suit brought, as well as all expenses incurred in'theprosecl1tion of the suit, which the law provides .he. may recover from the defendant, are costs. Section 983 of the Revised Statutes of the United States pro1l;h.at....... , " " "ThebiU c)f fees· of theclerk,marilhal. and attorney, and the amount paid witnesses, and lawful fees :for exemplifications and copies of papel'S Jilecfflijsl1rilyobtllined for useontriala;in cases w by law costs are , coverable in, favor of the prevailing party, shall be taxedbyajudge 01' clerk Qf tbe<;OIl1;t, and be i,rieluded in port.ion of a jtiqg!Jlent or decree against We lOSing party. Suclitaxed bills shall be filed with 'the papers in thecimse;" " "
ii;l ,this case. Under.th,is section,wb1c1;l fee bill estai>lished .bY4ct Congo is the unias part fqrm,:prqctice of the United Statljs of.hitUJo&ts the protest fees allowed bY' law, and pttislto in the complaint or not., I have beep familiar with the ,one distriotfor a qualier ,,in wpiclIlt was tp.e rule to ';treat the protest feei:1as costs, llIJ.d ta" them accordingly,8s of course, thQugh not the in all tbat,time the of tl;te pra{ltipe was never cllaI1el1ged. Where public records or .certifieq copies of ,sucp records are necessary evidence for a party, he mayproc'Ure thll sall;1e"nnd the feeslVl()wed by law to, the officers mak,illg and.<lertifyingsaid:·records are,nn,der sectioq983, taxable as part ofhis ,costs inthe case I if he succeeds, without regard to the .fact whether before or after suit Hussey V. such ley,. 5. <Blatchf. 134; lJen'/!-k v. Eddy; 12 Blatchf. 195; Gunther V. Insurance 1Q Fed. Rep. ,830; Fost.Fed. Pro 494; Hunt1'(388 v. Epsom,l!) F.eq. ,The case is precisely such a record, an,d .thafees for and obtaining are oosts, and taxable as {lostS.: ,ooElts, thematte,J: .in: dispute: in this cause," ex,elusive. c,>fiinterestand PlilStS," does the sum of $2,000. On jur.isqictipp,the. cou!'t nC} discretion ,llUtto give effect tPeact intendment or cOllStruqtioI;l.
·
to;
FARMERS' LOAN:&: TRUST CO. fl. HOUSTON & T. C. RY. CO.
115
The act of congress provides that,if it shall appear to the satisfaction of the court at any time after a suit brought or removed fnto this court that such suit "does. not really and substantially involve a dispute or the court shall proceed no controversy properly within its further, but shall dismiss the suit or remand it. In obedience to this injunction of the statute, this cause must be dismissed. DUNDY,
J., concurs.
FARMERS'LoAN
& TRUST CO.
t7. HOUSTON
& T. C. Ry. Co. et ale
(Oircuit Ooun, E. D. Texas. October 20, 1890.) FORBCL08URII OP MORNAGES-JmtISDICTION-PARTIES-SUBSTITUT!i:D SERVIQB.
Wbere a railroad whicb is in lobe bands of a receiver appoinWd b! a Uniwd States circuit court is sold under a decree of foreclosure to satisfy a jUDlOr deed of trust, and, wbile lobe property is still being administered by the coun through its receiver, suitis brougbt in the same court against the company by the trustee in the elder deed oftrnst to foreclose it, the court having jurisdiction of the sUbject-matter bas autbority to make the purchaser under the first foreclosure sale, which was made subjeQt. to tbe prior deed of trust, a party defendant, and to order substituted servo ice of. process upon him, notwithstanding the fact that he is a citizen of the same state as coIllplainant.
In Equity. Motion of George E. Downs. to set aside substituted service of process. WiUu, .Volt &- BaUinger, for complainant. .Rou8e &- Grant, for defendant Downs. PARDEE, J. In the case of Nelson S. Easton and James Rintoul, Trustees, and The Farmer8' Loan&- Trust Company, Trustee. vs. The HfJ'U&ton &- Texa8 Oentra,l Railway Company, a decree was rendered on the 4th day of May, 1888, for the sale of the Honston & Texas Central Railway, including that division of said railway known as the "Waco & Northwestern Division." The decree directed this particular division (Waco & Northwestern) to be sold in satisfaction of a deed of trust carrying a lien upon the property subsequent in date toa deed oftrust held by the Farmers' Loan & Trust Company, upon which last deed of trust this proceeding is based. The aforesaid decree ordered the sale to take place subject to said prior deed of trust to the Farmers' Loan & Trust Company;and the sale was so thereafter made, the present mover, Downs, becoming the purchaser. The sale under the decree aforesaid was alterwards con.firmed by the court, and the deed passed to the purchaser, which deed stated that it was made subject in all respects to the lien of the first mortgage in. {avorof said Farmers? Loan & Trust Company. At the time the decree aJoresaid was rendered, and the sale made thereunder, and at the time the Farmers' Loan & Trust Company, trustee, inStituted the present suit to foreclose the first mortgage upon the Waco &