Alexander v. Harrison
| Decision Date | 11 June 1891 |
| Docket Number | 162 |
| Citation | 28 N.E. 119,2 Ind.App. 47 |
| Parties | ALEXANDER ET AL. v. HARRISON |
| Court | Indiana Appellate Court |
From the Rush Circuit Court.
Judgment reversed.
W. A Thompson, A. O. Marsh, J. W. Thompson, H. U. Johnson, B. L Smith and C. Cambern, for appellants.
Harrison had an action pending in the Rush Circuit Court against Alexander and a number of others for false imprisonment, which was settled at the October term, 1889, of said court, and the parties entered into a written stipulation whereby the cause was to be dismissed at the costs of the defendants, which was done, and judgment was rendered thereon in favor of the plaintiff for costs.
It appears from the record that the cause was set down for trial on the 8th day of October, and on the 20th day of September the plaintiff caused subpoenas to issue to the sheriffs of Wayne and Randolph counties for a number of witnesses residing in those counties, who attended court as witnesses, and were present on the day the cause was set down for trial.These witnesses claimed fees and mileage for attendance, which were taxed by the clerk in the fee book, and the sheriff's fees for serving them were also taxed.After judgment had been entered in the cause the defendants moved the court, in writing, to tax the fees and mileage of such witnesses, and the fees and mileage of the officers for summoning them, to the plaintiff, on the ground that the witnesses did not reside in Rush county, nor in a county adjoining it, and their presence at the trial could not have been enforced, but was entirely voluntary, and none of them were sworn or examined at the trial.
An affidavit was filed in support of the motion, stating the residence of the witnesses, and showing that they lived neither in Rush county nor any county adjoining it, and they were not sworn nor used at the trial.It also appeared by the affidavit that the cause was not tried, but was settled by the parties.This motion was overruled, and the defendants excepted, and appeal from the decision of the court in overruling such motion.
There was nothing in the stipulation for the dismissal of the cause enlarging the appellants' liability for costs over what it would have been had they been defeated in the trial.It simply recited the settlement, and provided for the dismissal at appellants' costs.
It was said by the court in Apperson v. Mutual, etc., Ins. Co.,38 N.J.L. 388:
The terms "fees" and "costs" are often used interchangeably, as having the same application, but, accurately speaking, the term "fees" is applicable to the items chargeable by law as between the officer, or witness, and the party whom he serves; while the term "costs" has reference to the expenses of the litigation as between litigants.Musser v. Good,11 Serg. & R. Pa. 247.This distinction; however, has little, if any, practical value.
It is not claimed, in behalf of appellants, that the attendance of the witnesses was not procured in good faith, with the intention of using them if the cause had been tried; but they submit two propositions illustrating their position, both of which they claim should receive negative answers, viz.:
The statute does not provide, in express terms, from what counties witnesses may be compelled to attend court in civil actions.Section 484 requires the clerk to issue summons for witnesses upon the application of any party to the suit.Section 489 provides that witnesses residing in the county in which the court is held, shall be compelled to attend court in obedience to the summons without fees first being paid or tendered, while section 490 requires the payment, or tender, of one day's fees and mileage, at the time, or before, the subpoena is served, in order to compel the attendance of a witness who lives in another county.Section 493 fixes the per diem and mileage of witnesses, and provides that in no case shall mileage be computed beyond the limits of adjoining counties.
Section 423 provides that "Where the witness does not reside in the county, or in a county adjoining the one in which the trial is to be held," his deposition may be taken by either party, and read in evidence upon the trial, and compulsory process is provided to secure his attendance at the taking of the deposition.
We believe it has been generally understood, ever since the adoption of the code, that a witness could not be compelled to attend court as a witness, in any civil case or proceeding, in any other county than that in which he lives, or an adjoining county.While the provisions of the statute requiring fees and mileage tendered a witness before compelling him to leave his own county, are not expressly limited to the adjoining county, the amount of mileage to be tendered is so limited.
It would often result in a great hardship to compel a citizen to go as a witness to any county in the State for the small compensation provided by the statute, and to avoid the infliction of this hardship the Legislature has provided ample means for securing the testimony of witnesses living in distant counties, by deposition.Construing the several provisions of the statute upon this subject, as a whole, we think it clear that the attendance of a witness can not be enforced except in the county in which he lives or is served with process, or in an adjoining county.
Where the attendance of a witness can not be enforced, a summons issued and served upon him can have no mandatory force, and would amount to nothing more than a simple request for his presence.
But it by no means follows from the conclusion we have reached upon the first proposition submitted by counsel for appellants, that we shall concur with them in our answer to the other.
At common law the losing party in an action was not assessed with the payment of his adversary's costs as such, but was amerced in the way of punishment for waging a foundationless cause, or asserting a groundless defence.The right to recover costs is of strictly statutory origin, and in this State it is fixed and absolute, yet it must be administered in careful conformity to the statutes, and is confined, as a rule, to the items of fees which the law authorizes to be taxed, and to the rate established by law.
The provisions of the law limiting the territorial jurisdiction of courts over persons summoned as witnesses were designed for the benefit and protection of the citizens, and not the litigants.These immunities, however, may be waived in the same manner as any other particular privilege may be.If one be served with a writ under such circumstances as will not render his obedience compulsory, he may attend notwithstanding his right to remain away, and if he does so he submits...
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