McILWAINE et al. v. ELLINGTON et al.

McILWAINE et al. v. ELLINGTON et al. (Circuit Court, W. D. North Carolina, Fourth Circuit. January 24, 1900.) Clerk or Court — Fees—Preparing Record eor Appeal. The document required by Cir. Ct. App. Rule 14 (31 C. O. A. civ., 90 Fed. civ.), on appeal thereto, consisting of a true copy of the record in the trial court, bill of exceptions, assignments, and all proceedings in the cause, including the opinion of the courc below, all under the hand and seal of the clerk, called by said rule, in case of writ of error, a “return” thereto, is a record, within Rev. St. § 828, allowing to the clerk for “making any record, certificate, return, or report, for each folio, 15 cents,” preparation thereof is not a mere copying of a paper, fee for which is 10 cents per folio. In Equity. John W. Hinsdale, for complainants. Robert Dick Douglas, for the clerk. [MAJORITY — SIMOATOA, Circuit Judge.] SIMOATOA, Circuit Judge. This case comes up on a motion to retax a bill of costs in respect to the fee of S. L. Trogdon, Esq., clerk of this court. The decree of the circuit court having been filed, an appeal was allowed to the circuit court of appeals. Thereupon the clerk prepared the record for that court, and has charged for the .same at the rate of 1.5 cents per folio. To this the appellant excepts, insisting that the charge should be 10 cents per folio, as for a copy of a paper. This record consists of a true copy of the record in the trial court, bill of exceptions, assignments of error, and all proceedings in the cause, including the opinion of the court below, all under the hand and seal of the clerk. Cir. Ct. App. Rule 14 (31 C. C. A. civ., 90 Fed. civ.). In this rule 14 all this is called a “return” to the writ of error. The same rule applies to appeals as to writs of error. The fee bill allows to the clerk (section 828, Rev. St. U. S.) “for entering any return, rule, order, continuance, judgment, decree or recognizance, or drawing any bond, or making any record, certificate, return or report, for each folio, 15 cents.” This document required by rule 14 is a record. It becomes the record for the use of the appellate court. It is not simply a copy of the record in the court below. It embraces as well the bill of exceptions, the assignments of error, the opinion of the court, -and all proceedings in the cause; and it is made up by the clerk on his own responsibility. If it be redundant, it will be cut down. If it be defective in its presentation of the case, it will be perfected on mandamus. Its preparation bears no resemblance to the copying of a paper. It requires experience, judgment, and care. It is also, as we have seen by rule 14, a return. It is a certified paper, and in some sense a report of all that transpired below, for the information of the appellate court. For these reasons the item in the costs of the clerk is correct. He is entitled to 35 cents per folio. But one case can be found in which this point is adjudicated. Cavender v. Cavender (C. C.) 10 Fed. 828. This case allows for this service 10 cents per folio. It is with diffidence that a conclusion differing from that of the learned judge for the Eastern district of Missouri has been reached. He treats the record on appeal as a mere transcript, — “a copy of something ordered by the court in a case at law or in equity to be so forwarded.” Evidently it is something more than this. A copy of a paper can be prepared by any scrivener in the office. The preparation of the record for the use of the appellate court requires the exercise of experience, care, and skill on the part of the clerk or his responsible deputy. The exception to the taxation is overruled.