eoonrmu v. SAWYER. 15
But in Sehmieder v. Barney, 7 FED. REP. 451, per contra, it was
held that where there was in the same case more than one "trial
before a jury" a docket fee was taxable for each trial. In Osborn v.
Osborn, 5 FED.' REP. 389, there was no question ofrcosts, but the
words "iinal hearing," as used in the removal acts, were construed-
not to include an equity case where the evidence was heard and case
submitted on questions of fact to a jury, but the jury disagreed. Yet
in some of the cases on this statute as to costs this would be held
conclusive evidence that there was a “final hearing," although the
plaintiff voluntarily dismissed before the court could decree against
him. In The Alert, 15 FED. REP. 620, on the same construction
which I have placed on Harford v. Griyiths, supra, it was held in a
proceeding in rem,_where the ve_ssel was arrested and the case entered
on the docket, but subsequently dismissed on application of the
libelant on payment ofcosts, that this was a "final hearing." It was
there said that the ground of the decision is that "granting an order
which disposed of the cause was a final hearing," and that whenever
an order of the court is necessary to dispose of the case, the hearing
thereon is deemed to be a "final hearing.," This seems to me to be
the only just construction of the statute, and relieves us of that un-
certainty before pointedout which arises when we depart from iti
The cases of Coy v. Perkins, supra, and Yale Lock Co. v. Colvin, 14
FED. REP. 2f39,_are directly opposed to these views, and hold that
where the plaintiff voluntarily dismisses his bill this docket fee is not
taxable; but I am constrained, for the reasons given, to respectfully
dissent from that ruling, and adopt that made in the ot.her cases
7 - which have been cited holding the fee taxable. ·
This conflicting and indecisive attitude of the adjudged cases, and
the fact that the question has often troubled the taxing officers of
this court, induced me to take the first occasion when it has been
presented here for judicial decision to give the subject a careful in-,
vestigation, and this must be my apology for the undue length of this
opinion. . . - I _
Nothing less than a conviction, founded on thorough consideration,
would justify my judicial judgment when it dissents from any of my
brethren who have adjudicated the question.
Overrule the motion. s _