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In re Northern Indiana Old Co.

November 1, 1951

IN RE NORTHERN INDIANA OLD CO. MOORE
v.
FLETCHER.



Author: Finnegan

Before KERNER, FINNEGAN and SWAIM, Circuit Judges.

FINNEGAN Circuit Judge.

In Re Northern Indiana Oil Company, Inc., Bankrupt (Fletcher v. Surprise), reported in 180 F.2d 669, this court reversed an order of the District Court for the Northern District of Indiana, Hammond Division, entered on a petition by the Trustee to bring in unscheduled assets of the Bankrupt. On petition for rehearing in that appeal, this court modified its original opinion and denied rehearing. The mandate therein was stayed pending disposition by the Supreme Court of a petition for certiorari. On October 9, 1950, said petition was denied by the Supreme Court, 340 U.S. 824, 71 S. Ct. 58, 95 L. Ed. 605. Thereafter, on October 19, 1950, the mandate of this court issued to said District Court for the Northern District of Indiana. Said mandate awarded Robert B. Fletcher costs, expended in this court, in the sum of $1531.70 against Charles L. Surprise, Trustee, and directed that execution issue therefor; it further directed that the Trustee's petition to bring in assets be dismissed for want of jurisdiction.

Thereafter, pursuant to such mandate, the said District Court entered its decretal order of October 28, 1950, which provided:

"It is here Ordered, Adjudged and Decreed that the said mandate be and the same is hereby made the order and decree of this court and that said order or decree dated March 4, 1949, be and the same is hereby reversed and the petition of Charles L. Surprise, Trustee herein for turn-over, upon which petition said order of March 4, 1949, was based, is now dismissed for want of jurisdiction in this court.

"Further Ordered, Adjudged and Decreed that respondent, Robert B. Fletcher, have execution for costs taxed by the Circuit Court of Appeals and that he recover his costs in this court as taxed, and that he have execution therefor."

On October 30, 1950, pursuant to the bill of costs filed by Robert B. Fletcher, the clerk taxed costs in the District Court in favor of Robert B. Fletcher and against Charles Surprise, Trustee, in the sum of $2687.77. The next day, October 31, 1950, Robert Moore, Successor-Trustee, filed his motion to retax costs.

The District Court entered an order on January 18, 1951, granting in part the motion to retax costs by directing that the items for cost of printing appellant's brief be not allowed; that the item for cost of printing reply brief be not allowed; that the item for cost of printing appellant's answer for petition for rehearing be not allowed, and that the item of costs of printing appellant's answer to petition for certiorari be not allowed. The order provided that "in all other respects the motion is denied." Among the items of costs allowed by the District Court is one for premiums paid to Continental Casualty Company on supersedeas bond from March 14, 1949 to November 1, 1950, in the amount of 1636.00.

The notice of appeal was filed on January 27, 1951, by Robert Moore, Successor Trustee; he appealed from the order of January 18, 1951, denying petitioner's motion to retax costs.

Appellant, in this appeal, insists that the District Court's order of January 18, 1951, in so far as it denies his motion to retax costs, should be reversed, and the cause remanded to the District Court with directions to vacate all costs taxed in favor of Robert B. Fletcher and against the successor-trustee.

In support of his contention he urges:

1st - That because this court in the former appeal decided that under the facts and circumstances there existing the District Court was without authority to exercise summary jurisdiction in the turn-over proceeding involved, it follows that there was no power to tax costs against the trustee of the bankrupt estate.

2nd - His next claim is that, even though costs are held to be taxable against the trustee, the premiums paid by Fletcher on his supersedeas bond are not properly chargeable as items thereof.

I - Appellant's first contention that where jurisdiction to entertain a proceeding is lacking, the court has no power to tax costs therein is met at the outset with the provision of the Judicial Code of 1948, Act June 25, 1948, c. 646, 62 Stat. at Large 955, which provides: "Whenever any action or suit is dismissed in any district court for want of jurisdiction, such court may order the payment of just costs." 28 U.S.C.A. ยง 1919. He contends that the legislative history of this section and judicial precedents show that it "applies only to cases of the type where there has been an improper or collusive joinder of parties to confer jurisdiction." This contention is wholly untenable. ...


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