
    SNYDER v. McCarthy.
    (Circuit Court of Appeals, Eighth Circuit.
    May 25, 1912.)
    No. 3,735.
    1; Costs (§ 215
      
      ) — Taxation by Clerk — Appeal—Time to Take.
    Circuit Court rule 23, providing for the taxation of costs by the clerk and for an appeal therefrom to the court within 10 days “after such taxation by the clerk, but not afterwards,” requires the taking of an appeal within 10 days after the taxation by the clerk.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 797, 802, 816, 826; Dec. Dig. § 215.*]
    2. Costs (§ 215*) — Taxation by Clerk — Appeal—Time to Take — Waiver. Where an appeal from the taxation of costs by the clerk is taken after the time .xecl by Circuit Court rule 23, and the successful party brings the same on for determination before the court on notice of time of hearing, he does not waive the objection that the appeal was not taken within the 10 days.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 797, 802, 816, 826; Dec. Dig. § 215.*]
    In Error to the Circuit Court of the United States for the District of Minnesota.
    Action between Adelmar Snyder and J. F. McCarthy. There was a judgment on appeal from the clerk’s taxation of costs, and Snyder brings error.
    Affirmed.
    J. W]. Reynolds, for plaintiff in error.
    F. C. Harris, for defendant in error.
    Before SANBORN and ADAMS, Circuit Judges.
    
      
      For other oases see same topic & I number In Dec. & Am. Digs. 1907 to date, & Rep’r Indexes .
    
   SANBORN, Circuit Judge.

Rule 23 of the Circuit Court which provides that; “Costs and disbursements shall be taxed in the first instance by the clerk upon two dáys’ notice. An appeal therefrom may be taken to the court within ten days after such taxation by the clerk, but not afterwards” — means what it says, that the appeal therein mentioned may be taken within 10 days after the taxation by the clerk." It does not mean that it may be taken within 10 days after the notice of such a taxation is served upon the party who desires to appeal.

Where such an appeal is taken after the 10 days, and the successful party brings the same on for determination, before the court upon a notice of the time of hearing, he does not thereby waive the objection that the appeal was not taken within the 10 days.

The judgment below is affirmed.  