Anderson v. Ferguson-Bach Sheep Co.

• Decision Date: 16 June 1906
• Citation: 12 Idaho 418,86 P. 41
• Parties: WM. S. ANDERSON, Respondent, v. FERGUSON-BACH SHEEP COMPANY, Appellant
• Court: Idaho Supreme Court

86 P. 41

12 Idaho 418

WM. S. ANDERSON, Respondent, v. FERGUSON-BACH SHEEP COMPANY, Appellant

Supreme Court of Idaho

June 16, 1906

COSTS AND DISBURSEMENTS-MILEAGE OF WITNESSES-WITNESS' FEES FOR HUSBAND OR WIFE OF LITIGANT.

1. The party in whose favor a judgment is recovered is entitled to have costs taxed for mileage of witnesses who reside in an ad joining county and more than thirty miles from the place of trial, and who have attended the trial in response to a subpoena or on request of the party producing the witnesses.

2. Under the provisions of section 6039, Revised Statutes, a witness who resides in an adjoining county and more than thirty miles from the place of trial, is not obliged to attend in response to a subpoena; but the privilege of disobeying the subpoena is personal to the witness, and if he sees fit to waive the privilege and attend and testify, he is entitled to his mileage for actual and necessary travel within the state, the same as any other witness who has attended under compulsory process.

3. The wife of a litigant is entitled to mileage and per diem the same as any other witness would be for the same travel and attendance.

(Syllabus by the court.)

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. George H. Stewart, Judge.

From an order taxing costs in favor of plaintiff, defendant appealed. Affirmed.

Judgment affirmed. Costs awarded in favor of respondents.

Richards & Haga, for Appellant.

Where a witness resides and is served out of the county and more than thirty miles from the place of trial, his mileage fees cannot be taxed against the losing party. (Mylius v. St. Louis etc. R. Co., 31 Kan. 232, 1 P. 619; Hereford v O'Connor, 5 Ariz. 258, 52 P. 471; Sapp v King, 66 Tex. 570, 1 S.W. 466; Marks v. Fields (Tex Civ. App.), 29 S.W. 664; Whitehead v. Breckinridge, 5 Ind. Ter. 133, 82 S.W. 698; Meagher v. Van Sant, 18 Nev. 230, 2 P. 57.)

These cases are all squarely in point and in favor of appellant's contention upon statutes entirely similar to the Idaho statutes. (See, also, Hereford v. O'Conner, 5 Ariz. 258, 52 P. 471; State v. Willis, 79 Iowa 326, 44 N.W. 699; Fisher v. Burlington etc. Ry. Co., 104 Iowa 588, 73 N.W. 1070.)

The rule in the federal courts is clearly stated in 30 American and English Encyclopedia of Law, second edition, 1176.

"The true rule as gleaned from all the authorities is substantially to the effect that the acts of Congress were intended to, and do, allow mileage to witnesses to the full extent of the distance that could be legally reached by subpoena, or, in other words, mileage is allowed to any place within the district or to any point without the district to the extent of one hundred miles from the place where the court is held." (Eastman v. Sherry, 37 F. 846; Smith v. Chicago etc. Ry. Co., 38 F. 321.)

Where a wife is a witness on behalf of her husband, no fees, per diem or mileage should be taxed against the losing party.

Fees allowed to either while acting as a witness for the other, when a party to the suit, would, in legal effect, be allowing witness fees to the party. (Cole v. Angel (Tex. Civ. App.), 28 S.W. 93; Hereford v. O'Conner, 5 Ariz. 258, 52 P. 471.)

Perky & Blaine, for Respondent.

Statutes like our section 6039 of the Revised Statutes of 1887 are enacted for the benefit of the witness, which he can waive at will, and if he does so waive such privilege, the party procuring his attendance, if he prevails, can have his per diem attendance and mileage taxed as costs against the losing party. The items for the attendance and mileage of witnesses coming from beyond the limit prescribed by law as the distance within which they could be compelled to come were properly included in the memorandum of costs claimed by the prevailing party and properly taxed as such. (McGlauflin v. Wormser, 28 Mont. 177, 72 P. 428.)

Under our statute a subpoena is unnecessary, and costs could be taxed for the attendance and mileage if he came at the mere request of the prevailing party. (Crawford v. Abraham, 2 Or. 166; dissenting opinion of Chief Justice Hawley in Meagher v. Van Zandt, supra; Farmer v. Storer, 11 Pick. (Mass.) 241; United States v. Sanborn, 28 F. 299; Christainsen v. Union Trunk Line, 6 Wash. 75, 32 P. 1018; Wheeler v. Lozee, 12 How. Pr. 488.)

Under a statute like ours, where a witness living beyond the distance within which he could be compelled to attend court in answer to a subpoena appears in response thereto, and his testimony is taken at the trial, the party producing such witness is entitled, if he be successful, to have the per diem fees and mileage of such witness taxed against the losing party. (Briggs v. Rumeley, 96 Iowa 202, 64 N.W. 784; Iowa Code of 1873, sec. 3673; Iowa Ann. Code of 1897, sec. 4660; Alexander v. Harrison, 2 Ind.App. 47, 28 N.E. 119; United States v. Sanborn, 28 F. 299; Cahn v. Monroe, 29 F. 675; subdivision 11 of par. 19, and authorities cited in note 44, 11 Cyc. 120, 121.)

The prevailing party, who produced his wife as a witness may tax her per diem and mileage fees against the losing party. (Griffith v. Montandon, 4 Idaho 80, 35 P. 704.)

AILSHIE, J. Stockslager, C. J., and Sullivan, J., concur.

OPINION

AILSHIE, J.

This is an appeal from an order taxing costs. The principal question presented for our determination is: Can a successful litigant include in his cost-bill mileage for witnesses who were subpoenaed in a county other than the one in which the trial took place, and who reside more than thirty miles from the place of trial? Section 6039, Revised Statutes, provides that: "A witness is not obliged to attend as a witness before any court, judge, justice, or any other officer, out of the county in which he resides, unless the distance be less than thirty miles from his place of residence to the place of trial." It is provided by section 6035, Revised Statutes, that: "The process by which the attendance of a witness is required is a subpoena." Section 6 of the act of February 10, 1889 (Sess. Laws 1889, p. 216), provides for the taking of a deposition of a witness who resides out of the county and more than thirty miles from the place of trial. Section 6139, Revised Statutes, is as follows: "Witnesses in civil actions in the district court, or before any referee or commissioners thereof, are entitled to receive three dollars per day for each day's actual attendance, and twenty-five cents per mile one way; to be taxed as costs against the losing party." The statute (Rev. Stats., sec. 4912, as amended) authorizes a party who obtains judgment in his favor to have taxed against the defendant all "items of his costs and necessary disbursements in the action . . . . necessarily incurred." It is contended by appellant that since a witness who resides in another county and more than thirty miles from the place of trial is not obliged or compelled to attend, and since his deposition may be taken under the statute, that therefore the successful party cannot recover mileage for such witness. The respondent insists, on the other hand, that the statute exempting a witness from attending who resides out of the county, and more than thirty miles distant from the place of trial, is purely a personal privilege granted the witness, and one of which the litigant cannot take advantage, and or which no one else can complain in case the witness sees fit to waive and forego the privilege granted him.

As will be seen from the foregoing provisions of the statute, a successful litigant is entitled to recover his costs and disbursements from the defeated party. It is also provided that "witnesses" shall receive their per diem and mileage. No distinction is made by section 6139, Revised Statutes, among witnesses, nor is it provided that any one class of witnesses shall receive mileage and others not receive it. The statute does not require as a condition...