
    EDWIN M. KEATLEY v. THE UNITED STATES.
    [No. 24725.
    Decided May 7, 1906.]
    
      On the 'parties’ Motions.
    
    The clerk of the United States Circuit Court in West Virginia, pursuant to a rule of the court and in accordance with State practice, makes out copies of subpoenas for service on witnesses. He also charges fees where the court has ordered a severance.
    X. Where both State practice and the order of the court require that subpoenas be served by copy, the clerk is entitled .to his fees for making the copies.
    II. Where joint indictments were returned against several defendants but separate trials were granted to some of them, the clerk was justified in docketing the cases of these defendants as if separate indictments had been returned against them.
    III. The term “ cause ” in Revised Statutes, § 828, is synonymous with “ case ” or “ suit,” and indicates a proceeding in court. When Congress enumerates the details of a trial, such as issuing a venire, taxing costs, etc., in connection with the term, it is evidently employed as usually used in practice.
    
      The Reporters'1 statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant, Edwin M. Keatley, was clerk of the United States Circuit Court for the Southern District of West Virginia from July 1, 1901, to July 16, 1902, and was clerk of both the Circuit and District Courts for the said district from July 16, 1902, to September 17, 1904.
    
      II. Claimant’s accounts for fees earned during the period from July 1,1901, to January 1, 1904, duly verified, were presented to and approved by the United States court in the manner prescribed by. the act of February 22, 1875. Said accounts were presented to the accounting officers of the Treasury for payment. The items embraced in finding m were included in said accounts and were disallowed by the . accounting officers after explanations of same had been made to them by the claimant.
    III. Item 1. (A) Administering oath to United States marshal as to correctness of his accounts for disbursements, 18 at 10 cents each, $1.80.
    (B)Administering oaths to two separate accounts of office deputy marshal, 10 cents each, and attaching jurat thereto, 15 cents each, 50 cents.
    Item 2. Filing 21 exhibits in a case at 10 cents each, $2.10.
    The exhibits were filed separately, each being indorsed, marked, and formally filed by the clerk.
    Item 3. (A) Attendance on court, nine days between August 31, 1901, and January 1, 1902, at $5 each, $45.
    (B) Attendance on court, seven days between January 1 and April' 1, 1902, at $5 each, $35.
    (C) Entering nine orders opening court and nine orders closing court, at 15 cents each (prior to- January 1, 1902), $2.70.
    (D) Entering seven orders opening court and seven orders closing court, at 15 cents each (January 1 to April 1, 1902), $2.10.
    The orders were received by claimant from the judge indorsed “ enter,” or “ enter this order,” and signed by the court, whereupon claimant entered the orders, and the court afterwards signed the records for each date. Claimant was paid within $15.15 of his maximum for his services in 1902, so that of items B and D (1902) there is left but said sum of $15.15.
    (E) Filing four affidavits for poor defendants for process • for witnesses, at 10 cents each, 40 cents.
    Item 4. (A and B) Issuing three subpoenas duces tecum, at 75 cents each, $2.25.
    
      Claimant charged $1 for each of the three writs and the Department allowed him 25 cents each.
    (C) Issuing forty-seven subpoenas, at 25 cents each, $11.75.
    The accounting officers disallowed all charges for more
    than one subpoena for the same person to appear and testify in different cases at the same term of court.
    (D) Issuing five subpoenas, at 25 cents each, and entering return and filing same, at 25 cents each, $2.50.
    This is similar to the preceding item.
    Item 5. (A) Making copies of subpoenas for witnesses whose names appear in other subpoenas, 231 at 20 cents each, $46.20.
    These copies were furnished in pursuance of the following order of court:
    “ The statutes of West Virginia require that service of all process shall be made by delivering a copy thereof to the party to be served, and it appearing that some confusion has occurred from the practice of the marshal of this district serving subpoenas on witnesses by reading the same to them and failing to give copies thereof to said witnesses, it is here ordered that the clerk of this court do in future furnish the marshal of this district with a copy of each and every subpoena issued by him in criminal cases, to be left with witnesses as is required by the laws of the State of West Virginia, and that his fees therefor be allowed by the court and certified to the proper accounting officer of the Treasury for settlement.”
    Item 6. Separate docket fees for separate trials under one indictment, seven at $1 each where no issue joined and three at $3 each where issue joined and testimony taken — $16.
    The above was in cases where an indictment was returned against two or more defendants and motion for severance on behalf of defendants was granted by the court allowing separate trials, and each defendant was separately designated on the criminal docket. ' The charges were allowed by the Auditor, but, upon revision, were disallowed by the Comptroller in order that the question might be determined in court. A separate jury was called in each case where a trial was had, and the claimant performed the identical services in each case.
    
      
      Mr. Frank B. Grosthwaite for the claimant.
    
      Mr. Philip M. Ashford (with whom was Mr. Assistant Attorney-General Van Orsdel) for the defendants.
   Booth, J.,

delivered the opinion of the court:

This case is now before us on claimant’s motion to amend the findings heretofore filed, and defendants’ cross motion for a new trial.

As disclosed by the findings of this court, filed February 27, 1905, the claim was originally presented on behalf of Edwin M. Keatley, clerk of the United States Circuit and District courts for the Southern District of West Virginia, for fees earned during the period stated therein. Judgment was awarded the claimant for $79.25. The item contested in this motion by claimant is item 5; that contested by defendants is item 6, and the overruling of their counterclaim.

.Item 5 is a charge for making copies of subpoenas for witnesses whose names appear in other subpoenas. The statutes of West Virginia require that service of process shall be made by copy. The Federal court required by order that all its subpoenas should be served by copy as required by said State law, and it was in pursuance of said order that this service, was performed. We think the item allowable under the authority of United States v. Jones (193 U. S., 528).

The defendants’ contention as to item G is troublesome. It appears that joint indictments were returned against several defendants; that on motion of defendants’ counsel separate trials were granted to some of the defendants, whereupon the clerk made separate docket entries in accordance with said motion, docketing said causes the same as if though separate indictments had been returned against the parties granted separate trials.

Paragraph 10 of section 828 of the Kevised Statutes provides :

“For making dockets and indexes, issuing venire, taxing costs, and all other services on the trial or argument of a cause where issue is joined and testimony given, three dollars.”

By paragraph 11 a fee of $2 is allowed where no testimony is given, and by paragraph 12 a fee of $1 is allowed where the cause is dismissed or discontinued or judgment or decree rendered without issue.

Defendants’ contention rests upon the legal signification to be attached to the word “ cause,” insisting that the trial court, by granting a severance of the one case, did not thereby 'create several distinct causes, and that the statute embraces an allowance for the one cause only.

The terms “ case,!’ “ suit,” and cause ” are used synonymously in statutes and judicial decisions, each term indicating a proceeding in court. The intention of the legislature in employing the term must be ascertained by reference to the contest or the whole act.- No positive rule affixing their technical meaning under all circumstances can be prescribed. The Congress in the above statute, by enumerating the details of a trial, such as issuing a venire, taxing costs where issue is'joined or testimony given, evidently employed the term “ cause ” as usually used in practice before courts. It is difficult to perceive otherwise.

In the case at bar separate and distinct proceedings were had as to the severance granted the defendants; separate and distinct docket entries must necessarily have been made as to the disposition of the separate proceedings; and for this service, indispensable in its nature, we believe the Congress intended to allow fees.

The defendants’ counterclaim, predicated upon the alleged illegal allowance for the docketing of judgments, will have to be dismissed. The services here charged for were admittedly performed by order of the court, and under the Jones ease (supra) allowable.

Claimant’s motion to amend findings will be allowed. Findings of fact and conclusion -of law heretofore filed withdrawn and judgment set aside, and new findings filed as of this date awarding judgment in favor of the claimant for $125.45.  