Burrows v. Balfour

• Decision Date: 16 August 1901
• Citation: 65 P. 1062,39 Or. 488
• Parties: BURROWS et al. v. BALFOUR et al.
• Court: Oregon Supreme Court

65 P. 1062

39 Or. 488

BURROWS et al. v. BALFOUR et al.

Supreme Court of Oregon

August 16, 1901

Appeal from circuit court, Multnomah county; Arthur L. Frazer Judge.

Action by C.E. Burrows and others against Robert Balfour and others. From a judgment affirming the clerk's decision on motion to retax costs, defendants appeal. Reversed.

On April 6, 1899, the defendants recovered judgment for their costs and disbursements in an action brought against them by the plaintiffs in the circuit court for Multnomah county. Within five days thereafter they filed a cost bill containing, among other items, a claim for mileage of George F. Porter, who attended as a witness by special order of the court, traveling from Baker City to Portland and return, 714 miles, at 20 cents a mile, amounting to $142.80. Objections being made to the allowance of this item, an amended verified statement was filed by the defendants. The clerk thereupon decided that they were entitled to recover only single mileage for this witness, and on a motion to retax the costs his decision was affirmed by the circuit court. It appears from the cost bill, the amended verified statement, and the findings of fact that the action brought by plaintiffs against defendants was to recover $2,000, which they paid for certain property in Baker City, the title to which failed and which they allege they purchased without knowledge of the defect, relying on the defendants' representations that they had good title and a right to sell. After the case had been noted for trial, the defendants applied to the circuit court for an order requiring the personal attendance of witness Porter, who resided at Baker City, and whom they represented to be a material witness in their behalf, supporting their application by the affidavit of their counsel, stating "that one of the issues of said case is, did the plaintiff C.E. Burrows know of the condition of defendants' title to the property mentioned in the complaint at the time the plaintiffs bought said property of the defendants; that George F. Porter talked with said Burrows a short time prior to the purchase of said property by plaintiffs from defendants, and that said Porter will testify that said Burrows knew before plaintiffs bought the property of at least several of the objections which plaintiffs now make to defendants' title to said property; that said Porter is a resident of Baker City, Oregon, and is now living at Baker City; that the testimony of said Porter is material, and his oral testimony is important and desirable on behalf of the defendants." Based upon this affidavit, the court indorsed upon the subpoena issued for the witness a finding that his testimony "is material in this case, and his oral examination important and desirable," and ordered that he attend the trial as required by the subpoena, "on the payment of his legal fees, being double the ordinary fees." A few days later the witness was served with the subpoena and order at Baker City, paid double mileage to Portland and return, and traveled from Baker City to Portland, for the sole purpose of testifying as a witness, where, if plaintiffs had not taken a voluntary nonsuit, he would have testified that "prior to the purchase of said property by plaintiffs he talked with the plaintiff Burrows, who was the only one of the plaintiffs with whom defendants negotiated in regard to the sale of the property, as to the condition of defendants' title, and told him of the true state of said title, and that said Burrows before purchasing well knew the condition of said title."

F.D. Chamberlain, for appellants.

Dell Stuart, Frank S. Grant, and Robinson & Cole, for respondents.

BEAN C.J. (after stating the facts).

The principal question on this appeal is whether a witness residing within the state, but without the county, and more than 20 miles from the place of trial, is entitled to double mileage, when required by an order of the court to attend for oral examination. Preliminary to the consideration of this question, however, it is necessary to dispose of some other objections to the claim.

It is insisted that the affidavit upon which the order was based is insufficient, because it does not state in detail what was expected to be proved by the witness, or present any facts showing that his oral examination was important or desirable. The statute provides that a witness is not obliged to attend for oral examination at a place outside of the county in which he resides, or in which he may be served with a subpoena, unless his residence be within 20 miles of the place of trial, except that, in an action pending in a court of record, the court or judge thereof upon the affidavit of the party, or some one on his behalf, showing that the testimony of the witness is material, and his oral examination important and desirable, may indorse upon the subpoena an order for the attendance of the witness; the service of such subpoena and order, and the payment of double fees to the witness, are sufficient to require his attendance, if he be served within the state. Hill's Ann.Laws Or. § 795. The process by which the attendance of a witness is secured is a subpoena issued by the clerk; and this is sufficient to require his attendance, if properly served in the county in which he is required to attend for examination, or at any place within the state, if not more than 20 miles of the place of trial. But, when the personal attendance of a witness residing beyond these limits is required, it can only be procured by the service of a subpoena bearing the indorsement of an order...