
    Andrews v. Cole.
    
      (Circuit Court, N. D. New York.
    
    May 30, 1884.)
    1. Order Pro Confesso — Does not Entitle Complainant to Einal Decree as op Course.
    A complainant is not entitled as of course to a final decree wiien lie lias obtained an order pro confesso, be not being- permitted to take at bis discretion sucb a decree as be may be willing to abide by.
    2. Pinal Hearing — Right to Docket Pee — Rey. St. $ 824
    Tbe consideration of a bill is a hearing, and is final when it results in the final disposition of a cause, and entitles a party to a docket fee under Rev. St. j 824.
    In Equity.
    
      Thos. D. Richardson, for complainant.
    
      R. A. Stanton, for defendant.
   Wallace, J.

The defendant objects to tbe taxation by the clerk of a docket fee of $20 as part of the costs of the complainant upon a final decree herein. Tbe defendant did not answer or demur to the bill, and complainant took an order for a decree pro confesso, and subsequently obtained a final decree. As the cause has been finally determined, and as its determination involved a bearing by the court, there has been a final hearing within the meaning of section 824, Rev. St., which authorizes a docket fee of $20 to be taxed. There has been much discussion of the meaning of the term “final hearing,” as used in this section, and a diversity of opinion is found in tbe decisions. Several eases decide that any order or determination which results in a final disposition of the cause, including a dismissal of the bill on the motion of the complainant, or the dismissal of an appeal by the appellee for irregularity on tbe part of tbe appellant in bringing it to a hearing, is a final hearing. Hayford v. Griffiths, 3 Blatchf. 79; The Alert, 15 Fed. Rep. 620; Goodyear v. Sawyer, 17 Fed. Rep. 2. Other cases h ild that there is a final hearing only when some question of law or 'act has been submitted to the court requiring not merely formal ¡notion but consideration. Coy v. Perkins, 13 Fed. Rep. 112; Yale Lock Co. v. Colvin, 14 Fed. Rep. 269.

The defendant relies upon the authority of these latter decisions, but the,r are not decisive here, because a complainant is not entitled, as of c rarso to a final decree when he has obtained an order pro confess<. The matter of the bill is still to be decreed by the court, and thm only when it is proper to be decreed. The bill is to be examin td to see if the facts alleged entitle the complainant to relief. Accordi ug to the earlier practice of the English chancery a bill would not be taken pro confesso without putting the complainant to prove its matufiad allegations. Johnson v. Desmineere, 1 Vern. 223. The later practice is to set down the bill for hearing, upon an order previon sly obtained that the bill be taken pro confesso, whereupon the rec >rd is produced, and the court hears the pleadings and pronounce s the decree. The complainant is not permitted to take at his discrete on such a decree as he may be willing to abide by. Geary v. Sheriden, 8 Ves. 192. This is the practice which obtains under the equity 'ules of this court. The consideration of the bill is a hearing, and is anal when it results in the final disposition of the cause.

The taxation was correct.  