Calhoun v. Hammond, 3--575A93

• Decision Date: 22 April 1976
• Docket Number: No. 3--575A93,3--575A93
• Parties: Larry J. CALHOUN, Defendant-Appellant, v. Sharon HAMMOND, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 859

345 N.E.2d 859

169 Ind.App. 39

Larry J. CALHOUN, Defendant-Appellant, v. Sharon HAMMOND, Plaintiff-Appellee.

No. 3--575A93.

Court of Appeals of Indiana, Third District.

April 22, 1976.

J. Conrad Maugans, Bayliff, Harrigan, Cord & Maugans, Kokomo, for defendant-appellant.

Jeffry G. Price, Rhodes & Price, Peru, for plaintiff-appellee.

HOFFMAN, Judge.

On January 23, 1975, the jury returned its verdict against defendant-appellant Larry J. Calhoun and in favor of plaintiff-appellee Sharon Hammond in an action for damages arising from personal injuries sustained by the latter. The trial court entered judgment thereon. Thereafter, Hammond filed a written 'Motion for Taxing of Costs in Favor of the Plaintiff, Sharon Hammond, Against the Defendant.' By such motion, Hammond sought the recovery of an amount totalling $311, which included an expert witness fee of $200, three other witness fees of $20 each, a filing fee of $26, and compensation for '(c)osts of transcription of deposition of Larry Calhoun' amounting to $25. The motion was subsequently granted by the trial court.

Appellant contends on appeal that certain of the fees and expenses set forth in Hammond's motion may not properly betaxed as costs. The inclusion of the filing fee in the amount of $26 is not, however, in dispute.

Indiana Rules of Procedure, Trial Rule 54(D), provides that,

'Except when express provision therefor is made either in a statute or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs in accordance with any provision of law; but costs against any governmental organization, its officers, and agencies shall be imposed only to the extent permitted by law. Costs may be computed and taxed by the clerk on one (1) day's notice. On motion served within five (5) days thereafter, the action of the clerk may be reviewed by the court.' ¹

The term 'costs', appearing in the above context has a limited meaning. In Stayner v. Bruce et al. (1953), 123 Ind.App. 467, at 471, 110 N.E.2d 511, at 513 (transfer denied), this court stated,

'Court costs were unknown at common law and were not recoverable, eonomine, by either party. In this state the right to recover costs and liability for the payment thereof are matters entirely for the legislature, Latshaw v. State, ex rel. (1901), 156 Ind. 194, 59 N.E. 471, and courts have no inherent power in connection therewith. Costs cannot be allowed to one party or imposed upon another in the absence of a statute so providing. State ex rel. v. Freiberg, 1919, 70 Ind.App. 1, 122 N.E. 771. However, the determination of which party has the right to recover costs under a statute authorizing their assessment is a judicial process, Cauthorn v. Bierhaus 1909, 44 Ind.App. 362, 88 N.E. 314, and the court's determination of the question is an integral part of its judgment. Gescheidler v. Nat. Casualty Co., 1951, 120 Ind.App. 673, 96 N.E.2d 123. It can be said, we think that a court is powerless to render judgment for costs in a manner forbidden by statute even though it has jurisdiction of the subject matter and the parties and an attempt to do so is illegal. Wagner v. Peoples Bldg. & Loan Ass'n, 1943, 292 Ky. 691, 167 S.W.2d 825.'

More recently, our Supreme Court, in State v. Holder et al., Rentchler et al. (1973), 260 Ind. 336, at 338, 295 N.E.2d 799, at 800, stated:

'It is generally agreed that since costs were unknown at common law the right of their recovery is statutory and thus may be awarded by a court only when there is statutory authorization to do so.'

The schedule of authorized witness fees is to be found in IC 1971, 5--7--9--4 (Burns Code Ed.), which provides as follows:

'Witness fees in the circuit, superior and criminal courts, and in suits before justices of the peace, shall be as follows, to wit:

'Every witness attending the circuit, superior, and criminal courts, in his own county, per day, five dollars ($5.00).

'Every witness attending the circuit, superior, and criminal courts, from another county, per day, five dollars ($5.00).

'For each mile necessarily traveled in going, and returning from court, from his residence, eight cents (8c).

'Witness fees, before a justice of the peace, shall be as follows: Attending, per day, one dollar ($1.00), and mileage for each mile necessarily traveled in going to, and returning from court, from his residence, five cents (5c): Provided, That the party subpoenaing more than three (3) witnesses to testify in a civil case, to the same fact, shall pay the costs of all over three (3).'

In addition, IC 1971, 34--1--14--12 (Burns Code Ed.), provides:

'A witness who is an expert in any art, science, trade, profession or mystery may be compelled to appear and testify in any court in the county of the residence of the witness or any court in the adjoining county to an opinion, as such expert, in relation to any matter, whenever such opinion is material evidence relevant to an issue on trial before a court or jury, without payment or tender of compensation other than the per diem and mileage allowed by law to witnesses, under the same rules and regulations by which he can be compelled to appear and testify to his knowledge of facts relevant to the same issue.' (Emphasis added.)

In Keifer, Sheriff, et al. v. Summers et al. (1894), 137 Ind. 106, at 108--109, 35 N.E. 1103, at 1104, it was stated:

'Fees are moneys due to witnesses and officers for services rendered in court. They are a part of the costs of the action, and are due from the party who procured the services. If the party who has made such costs, and who owes such fees, is successful in the litigation, the court will award him a judgment against the defeated party, and this judgment will include whatever costs the successful party has been compelled to make. This judgment for costs is the sole property of the person in whose favor it is rendered, as much so as any other judgment. Hays v. Boyer, 59 Ind. 341; Miller v. State ex rel., 61 Ind. 503.' (Emphasis added.)

See also, Kepler v. Jessup (1894), 11 Ind.App. 241, 37 N.E. 655.

Also, in Alexander et al. v. Harrison (1891), 2 Ind.App. 47, at 48--49, 28 N.E. 119, at 119--120, it was stated:

'It was said by the court in Apperson v. Mutual, etc., Ins. Co., 38 N.J.L., 272: 'The word 'costs' is a word of known legal signification. It signifies, when used in relation to the expenses of legal proceedings, the sums prescribed by law as charges for the services enumerated in the fee-bill.'

'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 officers or witnesses 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.'

The Legislature intended that witness fees be included within the meaning of the term 'costs.' But, in any case, the law does not permit the taxation of such fees in excess of the amounts prescribed by IC 1971, 5--7--9--4, supra. IC 1971, 34--1--14--12, supra, cannot, under any circumstances, be considered to authorize fees for expert witnesses, or the costs occasioned thereby, in excess of the amounts set forth in the fee schedule applicable to other witnesses. Cf: Baum v. United States (5th Cir., 1970), 432 F.2d 85.

Particularly, in regard to expert witnesses the court in State v. Holder et al., Rentchler et al., supra, at 339--40 of 260 Ind., at 801 of 295 N.E.2d, stated:

'The decision to retain expert witnesses to testify for the defendant in an eminent domain proceeding concerning damages is a decision left solely to the discretion of the defendant and the amount of professional charges to be paid to defendant's expert should be a matter between defendant and his witness....