A defendant in error on whose motion a writ of error is
dismissed for want of jurisdiction may recover costs in this Court
which are incident to his motion to dismiss.
Page 114 U. S. 263
This case having been dismissed for want of jurisdiction, the
defendant in error made the following application to the Court.
"The plaintiffs in error failing to print the record, the
requisite amount was advanced by the defendant in error, with the
understanding that in case of his success this would be
refunded."
"The Clerk now informs the defendant in error that the amount
advanced by him cannot be taxed in his favor, nor any of his other
costs in this court, because the cause was dismissed for want of
jurisdiction. As the taxation of costs in such cases is a matter of
daily occurrence, and frequently of much importance, we take this
occasion of bringing the subject to the attention of the
court."
"
* * * *"
"We ask that the clerk may be directed to tax the costs of
printing the record and for supervising the same against the
plaintiff in error, the Bradstreet Co."
MR. JUSTICE WAITE delivered the opinion of the Court.
This writ of error was dismissed at a former day in this term,
on motion of the defendant in error, for want of jurisdiction,
because the value of the matter in dispute did not exceed $5,000.
112 U. S. 112 U.S.
227. In order to present his motion to dismiss, it became necessary
for the defendant in error to cause the record to be printed, and
to do that he was compelled to pay the cost of printing and the fee
of the clerk for supervising. The judgment, as entered on the
motion to dismiss, made no order as to costs, and the defendant in
error now moves that the cost of printing and the clerk's fee for
supervising be taxed against the plaintiff in error.
It has been often decided that if a suit is dismissed for want
of jurisdiction in this Court, no judgment for the costs of the
suit can be given.
Inglee v.
Coolidge, 2 Wheat. 368;
McIver v.
Wattles, 9 Wheat. 650;
Strader v. Graham,
18 How. 602;
Hornthall v.
Collector, 9 Wall. 566. A different rule
prevails
Page 114 U. S. 264
when there has been a reversal here because the circuit court
did not have jurisdiction, as this Court had authority to correct
the error of the circuit court in taking jurisdiction.
Turner v.
Enrille, 4 Dall. 7;
Winchester v. Jackson,
3 Cranch 514;
Montalet v.
Murray, 4 Cranch 46;
Mansfield & Lake
Michigan Co. v. Swan, 111 U. S. 379,
111 U. S.
387.
Here, however, the question is not as to the right of the
defendant in error to recover his costs in the suit, but only such
as are incident to his motion to dismiss. It has been decided that
the writ of error was wrongfully sued out by the plaintiff in
error. To get rid of the writ and the supersedeas which had been
obtained thereunder, the defendant in error was compelled to come
to this Court and move to dismiss. That motion we had jurisdiction
to hear and decide. The right to decide implies the right to
adjudge as to all costs which are incident to the motion.
Under Rule 10, § 2, of this Court, it was the duty of the
plaintiff in error to cause the record to be printed and to pay all
the costs and fees incident thereto in time for use when required
in the progress of the cause. If it failed in this, the defendant
in error might pay the costs and fees, and thus secure the
printing. Under § 7, in case of reversal, affirmance, or dismissal
with costs, the amount of the cost of printing the record and the
clerk's fee are to be taxed to the party against whom the costs
were given.
In this case, the plaintiff in error neglected to have the
record printed by the time it was wanted by the defendant in error
on his motion to dismiss. Under these circumstances, we do not
doubt our authority to adjudge the costs incident to the printing
against the plaintiff in error as part of the costs of the motion
to dismiss. It is accordingly
Ordered that the judgment heretofore entered be amended so
as to charge the plaintiff in error with all the costs of the
motion to dismiss, which shall include the cost of printing the
record, and the clerk's fee for supervising.
