CHAPTER XI. REMOVAL BOND. § 167. A defendant procuring a removal is liable for all the costs in the Federal Courts if the cause is remanded to the State court.-In the absence of a statute authorizing it, costs could not be awarded against a defendant, who had procured a removal, when the Circuit Court of the United States orders a suit remanded to the State court for want of jurisdiction.1 The defects in some prior removal acts, in respect to costs, have been remedied 2 in the acts of 1875 and 1887-8. When a suit is remanded from a Circuit Court of the United States to a State court, the Circuit Court should, in ordinary cases, render judgment against the removing defendant for all costs in that Court; and if the order to remand is made by the Supreme Court, or by a Circuit Court of Appeals, the costs to be taxed against the removing defendant should include the costs of the appellate Court or Courts as well as the Circuit Court. In exceptional cases, as when both parties are at § 167. Hanrick v. Hanrick, 153 U. S. 192, 1 Nashville v. Cooper, 6 Wall. 247, 14 Sup. Ct. 835, 38 L. 685; 18 L. 851, approved in Citizens' Postal Tel. Cable Co. v. Alabama, Bank v. Cannon, 164 U. S. 319, 17|155 U. S. 482, 15 Sup. Ct. 192, 39 L. 2 Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 4 Sup. Ct. 510, 28 L. 462. 3 Act of 1875, §3, as amended by act of 1887-8, ante §8; Act of 1875, § 5, ante § 10; Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 4 Sup. Ct. 510, 28 L. 462; 231; Neel v. Pennsylvania Co., 157 U. S. 153, 15 Sup. Ct. 589, 39 L. 654; Walker v. Collins, 167 U. S. 57, 17 Sup. Ct. 738, 42 L. 76; Southwestern Tel. & T. Co. v. Robinson, 2 U. S. App. 148, 1 C. C. A. 91, 48 Fed. 769, 16 L. R. A. 545; Craswell v. Belanger, 15 U. S. App. 104, 6 C. C. A. 1, 56 Fed. 529; Grand Trunk Ry. Co. v. Twitchell, Graves v. Corbin, 132 U. S. 571, 21 U. S. App. 45, 8 C. C. A. 237, 59 10 Sup. Ct. 196, 33 L. 462; Torrence v. Shedd, 144 U. S. 527, 12 Sup. Ct. 726, 36 L. 528; Fed. 727; Tod v. Cleveland & M. V. R. Co., fault, the Court may make such other order as to costs as may be just.* Whether an attorney's docket fee of twenty dollars, in the Circuit Court, should be taxed as part of the costs, upon sustaining a motion to remand a suit to a State court, has been differently decided by different Judges in the reported decisions. The unreported practice is even more conflicting than the reported decisions; for in at least two Districts a docket fee of ten dollars is allowed, in several a docket fee of five dollars, and in the majority none at all. 22 U. S. App. 707, 12 C. C. A. 521, 65 Fed. 145; Wabash R. Co. v. Barbour, 43 U. S. App. 102, 19 C. C. A. 546, 73 Fed. 513; support the opinion of Justice Brown. Since this volume went into the printer's hands, a decision of Judge Hanford has been published in Fitzgerald v. Missouri Pac. R. which he adopts the theory that a Co., 45 Fed. 812, 821; docket fee of ten dollars is taxable Adelbert College v. Toledo, W. & upon a sustained motion to reW. R. Co., 47 Fed. 836, 848; Pellett v. Great Northern Ry. Co., 105 Fed. 194. • Act of 1875, § 5, ante § 10; mand. Pellett v. Great Northern Ry. Co., 105 Fed. 194. 6 Correspondence with Judges Hancock v. Holbrook, 112 U. S. and clerks has elicited the follow 229, 5 Sup. Ct. 115, 28 L. 714; Peper v. Fordyce, 119 U. S. 469, 7 Sup. Ct. 287, 30 L. 435; First Nat. Bank v. Prager, 63 U. S. App. 703, 34 C. C. A. 51, 91 Fed. 689; Egerton v. Starin, 91 Fed. 932. "There is one reported decision in favor of taxing a docket fee of $20: Josslyn v. Phillips, 27 Fed. 481, decided by Judge (now Justice) Brown. There is one reported decision against taxing any docket fee: ing information: First Circuit. In the District of Maine, the question of a docket fee upon sustaining a motion to remand, has never come up for determination; so there is no practice there on the point. In the District of Massachusetts, it is the practice to allow an attorney's docket fee as taxable costs upon sustaining a motion to remand. In the District of New Hampshire, the question has not been Smith v. Western U. Tel. Co., 81 before the Court, but the practice Fed. 242, of the clerk has been to tax an at decided by Judge Baker with con- torney's docket fee upon the Court currence of Judge Woods. While the preponderance of practice in the Federal Courts favors the view of Judge Baker, the better reason seems to the author to sustaining a motion to remand. In the District of Rhode Island, the question has not arisen; a docket fee has never been claimed The true rule seems to the author to be that the act of 1875, § 5, requires the Court upon remanding a suit, to tax Second Circuit. upon the Court sustaining a mo- such fee has been claimed for many tion to remand. years. In the Western District of PennJudge Wallace writes me as to sylvania, no docket fee is taxed the Circuit Judges: upon sustaining a motion to remand. "We all agree to the propriety of an allowance of costs equivalent to those of a docket fee." In the District of Connecticut, the clerk informs me, a docket fee was held to be taxable, by Judges Wallace and Shipman, upon a contested motion after the order to remand, in Koraback v. Pennsylvania Co., 42 Fed. 420, and the precedent so set has been followed ever since in that District. In the Southern, Eastern, and Northern Districts of New York, the practice of the clerks has been not to tax docket fees upon sustained motions to remand; and in the Southern and Eastern Districts, at least, this practice-contrary to that held proper by the Circuit Judges has had the sanction of the District Judges. In the District of Vermont, there has been no contested motion to remand granted within the memory of the present District Judge; "so there is no practice here about it." Third Circuit. Fourth Circuit. Judge Brawley of South Carolina writes me: "No docket fee is taxable in this District on such motion, and Judge Simonton, Circuit Judge, informs me that such is the rule in this Circuit." District Judges Purnell (Eastern District of North Carolina), Paul (Western District of Virginia), and Jackson (West Virginia) inform me that the practice to tax no docket fee prevails in the clerks' offices of their respective Districts. The question of the right to such a fee was raised at the September term, 1900, of the Circuit Court at Lynchburg, Va., and was decided in the negative by Judge Paul,— decision not reported. In the Eastern District of Virginia, the Western District of North Carolina, and the District of Maryland, no response to my letters of inquiry was received from the clerks or District Judges. Fifth Circuit. In the Northern District of Ala In the District of Delaware, there has been no motion to re-bama, it has been the practice of mand sustained, within the knowledge of the present clerk; so there is no practice as to costs. In the District of New Jersey, it has not been the practice to allow an attorney's fee on a motion to remand. the Court to tax an attorney's docket fee as part of the costs upon sustaining a motion to remand. In the Middle District of Alabama, no answer was received from the clerk or District Judge. In the Southern District of AlaIn the Eastern District of Penn- bama, there have been but few sylvania, no question as to a cases remanded, and in these no docket fee has been decided; no attorney's fee was taxed by the such sum as costs for fees of plaintiff's attorney as the Court clerk, with the approval of the District Judge, and the matter was not brought before the Court for a judicial ruling. apply, as the equitable proceeding by bill is not usually filed unless motion to remand is overruled, and pleadings are required to be recast; In the Northern District of Flor--clause 1 of § 824, therefore would ida, Judge Swayne writes: “The question of docket fee in a remanded case has never been before me, but my opinion is against it." not apply. I think clause 2, § 824, Rev. St., covers the ground.” In the Eastern District of Louisiana, the practice of the Court has been to order the taxation of a In the Southern District of Flor- docket fee of ten dollars in a reida, Judge Locke writes: manded case. "Whenever a docket fee has been allowed, it has been without objection and, therefore, the question has never been judicially before me." In the Western District of Louisiana, the District Judge and clerk have not answered my inquiries as to the practice. In the Northern District of MisIn the Northern District of Geor-sissippi, the clerk does not rememgia, the question has not been up ber any case remanded. for decision by the Court; it has been the practice of the clerk not to tax a docket fee as a part of the costs in a remanded case. In the Southern District of Georgia, the practice is thus stated by L. M. Erwin, deputy clerk at Ma con: "It has been and still is the practice of the clerk in this District to tax in cases at law, when judgment is rendered without a jury, in favor of successful counsel, a docket fee of ten dollars. Rev. St., § 824, cl. 2. If a motion to remand in common-law case is sustained by the Court, it is, of course, a judgment of the Court rendered without a jury, and the party losing would be liable for this fee. As there is no distinction between law and equity practice in the State courts of Georgia, if a case was removed to United States Court and a motion to remand was made, where plaintiff seeks equita In the Southern District of Mississippi, the practice has been to tax no fee, and attorneys have not claimed docket fees in remanded cases. In the Eastern District of Texas, it has never been the practice of the clerk to tax an attorney's docket fee in any case remanded to a State court; the question has not been before the Court. In the Northern District of Texas, an attorney's docket fee is not taxed by the clerk in a remanded case unless the Court makes an order allowing the same. In the Western District of Texas, there is no established practice upon the question. Sixth Circuit. In the District of Kentucky, the question has not been before the present District Judge, but the clerk's practice has been, and is, to tax the attorney's fee. In the Eastern District of Michible relief, and the Court sustained gan, the decision of Judge (now the motion, the same rule would | Justice) Brown, in The true rule seems to the author to be that the act of 1875, § 5, requires the Court upon remanding a suit, to tax upon the Court sustaining a motion to remand. Second Circuit. the Circuit Judges: such fee has been claimed for many years. In the Western District of Penn Judge Wallace writes me as to sylvania, no docket fee is taxed upon sustaining a motion to remand. "We all agree to the propriety of an allowance of costs equivalent to those of a docket fee." In the District of Connecticut, the clerk informs me, a docket fee was held to be taxable, by Judges Wallace and Shipman, upon a contested motion after the order to remand, in Koraback v. Pennsylvania Co., 42 Fed. 420, and the precedent so set has been followed ever since in that District. In the Southern, Eastern, and Northern Districts of New York, the practice of the clerks has been not to tax docket fees upon sustained motions to remand; and in the Southern and Eastern Districts, at least, this practice-contrary to that held proper by the Circuit Judges has had the sanction of the District Judges. In the District of Vermont, there has been no contested motion to remand granted within the memory of the present District Judge; so there is no practice here about it." Third Circuit. In the District of Delaware, there has been no motion to remand sustained, within the knowledge of the present clerk; so there is no practice as to costs. In the District of New Jersey, it has not been the practice to allow an attorney's fee on a motion to remand. Fourth Circuit. Judge Brawley of South Carolina writes me: "No docket fee is taxable in this District on such motion, and Judge Simonton, Circuit Judge, informs me that such is the rule in this Circuit." District Judges Purnell (Eastern District of North Carolina), Paul (Western District of Virginia), and Jackson (West Virginia) inform me that the practice to tax no docket fee prevails in the clerks' offices of their respective Districts. The question of the right to such a fee was raised at the September term, 1900, of the Circuit Court at Lynchburg, Va., and was decided in the negative by Judge Paul,decision not reported. In the Eastern District of Virginia, the Western District of North Carolina, and the District of Maryland, no response to my letters of inquiry was received from the clerks or District Judges. Fifth Circuit. In the Northern District of Alabama, it has been the practice of the Court to tax an attorney's docket fee as part of the costs upon sustaining a motion to remand. In the Middle District of Alabama, no answer was received from the clerk or District Judge. In the Southern District of AlaIn the Eastern District of Penn- bama, there have been but few sylvania, no question as to a cases remanded, and in these no docket fee has been decided; no attorney's fee was taxed by the |