The Bay City , 2 Flip. 703 ( 1880 )

Brown, D. J.

By Revised Statutes, § 824, there is taxable in favor of the prevailing party, “on a trial before a jury, or on a final hearing in equity or admiralty, ” a docket fee of $20. A practice has heretofore prevailed in this district of taxing this fee only upon the termination of the suit by a judgment or decree. The precise question does not seem to have arisen in any reported case. Upon reflection, however, I think the fee is taxable, whenever the trial is entered upon by the swearing of a jury in a common-law case, or by the introduction of testimony or the final opening of the argument upon a final hearing in equity or admiralty. The fee is not made by the statute to depend upon a judgment or decree, but is taxable on a trial or final hearing. As the labor for which the docket fee is supposed to be a compensation is performed on or before the trial, equitably the party ought not to lose the benefit of it by a discontinuance entered after the trial or hearing has begun. In New York the practice seems to be to allow it upon a final disposition of the cause, even without a trial or hearing. Hayford v. Griffith, 3 Blatch. 79.

The appeal is sustained.