Opinion
No. 7569.
October 25, 1934.
Original petition for mandamus by Frank M. King, directed to the District Court for the Southern District of Alabama.
Petition denied.
Hugh C. Wilkinson, of Birmingham, Ala., for petitioner.
Before BRYAN, FOSTER, and WALKER, Circuit Judges.
This is an original petition for mandamus. It alleges: Petitioner has taken an appeal to this court from an order of the District Court for the Southern District of Alabama disallowing for the most part his claim against the bankrupt in a proceeding in bankruptcy styled In re Mobile Broadcasting Corporation, Bankrupt. The District Judge allowed an appeal in the bankruptcy case, and approved the transcript of the evidence, which is on file with the clerk of the District Court. Petitioner requested the clerk to deliver to him "the transcript of evidence and the other papers in said cause that were necessary to have printed * * * in order that your petitioner might have the record in such cause printed [and] then certified by said clerk and filed with this Court, as required by law." The clerk refuses "to deliver said papers to your petitioner, or to allow him to obtain possession of the same," and justifies his conduct by relying upon the following rule of the District Court: " Printing Record on Appeal. When the final judgment or decree of this Court, in any cause or proceeding, is sought to be reviewed on appeal to the United States Circuit Court of Appeals, the record, that the appellant is required by law to print and file in the office of the Clerk of the Circuit Court of Appeals, shall be printed under the supervision of the Clerk of this Court, who shall retain in his custody and control at all times the original papers, records and documents pertaining to the case, unless the Court should order specially otherwise. For collating and comparing the printed transcript with the original record, and for indexing and certifying the same, the Clerk may charge and collect such fees as may be allowed by law for such services." After the clerk's refusal of his request, petitioner applied to the District Judge to waive or modify that rule of the court in order that he might have the record printed, but this the judge refused to do. Petitioner can have the record printed in Birmingham for $250, but the clerk demands a deposit of $500 and insists upon having it printed under his supervision. Petitioner offers to return all papers in the case on appeal to the clerk as soon as the printing can be done by the printer selected by him.
The petition prays that the judge and the clerk be required to show cause why a writ of mandamus should not issue, commanding them to deliver to petitioner "all the papers, including the transcript of the evidence," for the purpose of having the record printed. A rule to show cause was issued, and in answer to it the respondents admit that petitioner requested permission from each of them to take the files and the papers in the bankruptcy case to Birmingham, outside the district, for the purpose of having the record printed, and that they have each declined to grant his request, because of the rule of court cited in the petition. The clerk answered also that he had carefully estimated the cost of preparing, printing and certifying the record, and that such cost would be $520, according to his estimate.
It is thus made apparent that the clerk takes the position that he has the right to let the contract for the printing of the record. We think he is mistaken. It is provided by statute that the appellant in a case "shall cause to be printed under such rules as the lower court shall prescribe, and shall file in the office of the clerk of such circuit court of appeals * * * at least twenty-five printed transcripts of the record of the lower court, * * * one of which printed transcripts shall be certified under the hand of the clerk of the lower court and under the seal thereof; * * * and no written or typewritten transcript of the record shall be required." 28 USCA § 865. The appellant himself is therefore entitled to have the record printed, and is not obliged to let the clerk of the District Court have it printed or supervise the printing of it. See Rainey v. Grace Co., 231 U.S. 703, 34 S. Ct. 242, 58 L. Ed. 445. The requirement of the rule of the District Court above quoted, to the effect that the record shall be printed under the supervision of the clerk thereof, runs counter to the statute, and hence may not be enforced. The fees of the clerk of the District Court, in so far as they are here material, are enumerated in 28 USCA § 555. The clerk is allowed 15 cents a folio for a copy of any record, entry, or other paper, or for making and comparing a transcript of record on appeal when required or requested, and 5 cents a folio for comparing any transcript, copy of record, or other paper with the original. If the appellant, proceeding under 28 USCA § 865, causes a record to be printed, one of the printed transcripts is certified by the clerk, and it takes the place of, and dispenses with the necessity theretofore existing of requiring, a written or typewritten transcript of the record. In that event the clerk is only entitled to the fees under 28 USCA § 555 for making copies of original records, entries, and papers, and for comparing copies, including a printed copy of the transcript, with the originals on file in his office. But the appellant is not entitled to take out of the clerk's office original court records, such as transcripts of evidence, bills of exceptions, or other original papers and documents on file in the case, for the purpose of having printed copies made, and a rule which prevents him from doing so is well within the discretion of the District Court. He must pay the clerk for copies of such original papers on file as he needs for printing and for comparing with the originals any copies furnished by him. The petition discloses that petitioner's request was for original court files, and not for copies for which he offered to pay the fees allowed by law.
The rule to show cause is discharged, and the petition for mandamus is denied.