KANSAS CITY, FT. S. & M. R. CO. v. McDONALD; SAME v. STONER

KANSAS CITY, FT. S. & M. R. CO. v. McDONALD. SAME v. STONER. (Circuit Court of Appeals, Eighth Circuit. March 2, 1894.) Nos. 85 and 86. Costs on Appeal — Attorney’s Fee. Upon the affirmance of a judgment, with costs, by the circuit court of appeals, an attorney’s fee of $20 is taxable against plaintiff in error, as this is the uniform practice of the supreme court under a rule identical with that of the circuit court of appeals (Sup. Ct. Rule 24, subd. 2, 3 Sup. .Ct. xiii.; Cir. Ct App. Rule 31, subd. 2, 47 Fed. xiii.), and as the act (realms' the latter court declares that “the costs and fees in the stv preme court now provided for by law shall be costs and fees in the circuit courts of appeals” (26 Stat. 826, § 2). In Error to the Circuit Court of the United States for the Eastern District of Arkansas. These were actions to recover damages for personal injuries. The opinions of this court affirming the judgments on the merits are reported in 2 C. C. A. 153, 51 Fed. 178, and 2 C. C. A. 437, 51 Fed. 649, respectively. A motion is now made by defendants in error to retax the costs. I. P. Dana, for plaintiff in error. George H. Sanders and Joseph W. W. Martin, for defendant in error. Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge. [MAJORITY — PER CURIAM.] PER CURIAM. A motion is made in each of these cases to retax the costs in this court, and to strike from the costs taxed by the clerk against the plaintiff in error the $20 attorney’s fee he allowed. The order of this court was that the judgment of the court below be affirmed, with costs. It has been the uniform practice of the supreme court, in cases where a judgment is affirmed, to tax an attorney's fee of $20 against the plaintiff in error. The rule of this court upon this subject is a literal copy of that of the supreme court. It is: “In all cases of affirmance of any judgment or decree in this court, costs shall be allowed to the defendant in error or appellee, unless otherwise ordered by the court.” Rule 24, subd. 2, of supreme court rules; rule 31, subd. 2, rules of this court. The act of congress by which this court was established provides that “the costs and fees in the supreme court now provided for by law shall be costs and fees in the circuit courts of appeals.” 26 Stat. 826, § 2. We are of the opinion that the fact that the highest judicial Iribunal in the land has uniformly allowed this attorney’s fee under a. rule identical, as far as it relates to this subject, with that in this court, was sufficient evidence that this item was a part of 'The costs and fees in the supreme court provided for by law” to warrant our clerk in allowing it, and the motions are accordingly denied.