Feenaughty Machinery Co. v. Turner

• Decision Date: 31 May 1927
• Docket Number: 4645
• Citation: 257 P. 38,44 Idaho 363
• Parties: FEENAUGHTY MACHINERY COMPANY, a Corporation, Appellant, v. THEO. TURNER, Respondent
• Court: Idaho Supreme Court

257 P. 38

44 Idaho 363

FEENAUGHTY MACHINERY COMPANY, a Corporation, Appellant, v. THEO. TURNER, Respondent

No. 4645

Supreme Court of Idaho

May 31, 1927

APPEAL AND ERROR-CERTIFICATION OF PAPERS BY TRIAL JUDGE-SUFFICIENCY OF - ORDER RETAXING COSTS - APPEALABLE ORDER - TAXABLE AND NONTAXABLE FEES-STATUTE GOVERNS RIGHT TO RECOVER.

1. Certification by trial judge, trying principal action and making order striking certain items from cost bill and retaxing costs, that papers used by him in deciding motion to strike items objected to were those included in transcript and constituted all records, papers and files used or considered on such hearing, held sufficient under C. S., sec. 7164.

2. Under C. S., secs. 6879, 7164, appellant is not required on appeal from order retaxing costs to prepare and file a formal bill of exceptions, where such order appeared in minutes of district court and was included in transcript.

3. Memorandum decision of trial court on hearing of motion to retax costs, stating that it is ordered that certain items be stricken from cost bill, held to constitute an "order" sufficient to authorize appeal therefrom.

4. Where witness appeared merely as courtesy to plaintiff's attorney, fees for his services may not be taxed in absence of actual demand by witness of fee for performing services or showing that it was a necessary disbursement, in accordance with C. S., sec. 7218.

5. Right to recover costs is governed by statute.

6. Stockholder of corporation appearing as a witness in litigation, in which corporation was involved, held entitled to witness fees and mileage for attendance on such trial in which corporation was successful party.

7. Fees and mileage of witness coming from without state may be taxed against losing party.

8. Where, on appeal, order retaxing costs and striking certain items from cost bill was reversed as to principal item appellant was entitled to costs of appeal, the original judgment being for more than $100.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. O. R. Baum, Judge.

Motion to strike items from cost bill and retax costs. Granted as to two items. Affirmed as to one item, and reversed as to other.

Order of the district Court striking the witness fee and mileage claimed for W. O. Feenaughty reversed, with directions. Appellant awarded costs of the appeal.

F. M Bistline, for Appellant.

The fact that a witness is an attorney at law does not disentitle him to witness' fees in any case unless he is an attorney or counselor in such cause. (C. S., secs. 7218, 8069, 8072.)

The president of a corporation is not a party to an action brought by the corporation, so as to disentitle him to fees as a witness in its behalf. (C. S., secs. 7218, 8069, 8072; 7 R. C. L., Costs, sec. 15; Webster-Soule Farm v Woodmansee, 36 Idaho 520, 211 P. 1090; Mutual Fire Ins. Co. v. Weller, 98 Iowa 731, 68 N.W. 443; Nead v. Millersburg etc. Co., 79 F. 129.)

See 50 Am. Digest, p. 70, where the following cases are digested: Salmon Creek etc. Co. v. Dusenberry (Pa.), 2 Chest. Co. Rep. 205; Evans v. School Board, 9 Lanc. Bar, 102; First Nat. Bank v. Greider, 5 Lanc. Bar, No. 1; Wilson v. Mutual Fire Ins. Co., 1 Pa. Co. Ct. Rep. 11; Johnson v. A. & N. P. R. Co., 1 Pa. Co. Ct. Rep. 480.

See the following cases wherein witnesses were employees of corporations, though not officers: Henry v. Chicago, M. & P. S. R. Co., 84 Wash. 633, 147 P. 426; Parson Band Cutter etc. Co. v. Sciscoe, 129 Iowa 631, 6 Ann. Cas. 1015, 106 N.W. 164.

O. M. Fox and Merrill & Merrill, for Respondent.

The court was correct in striking from the cost bill the witness fee of the president of appellant corporation.

It has been held many times that a litigant cannot receive a witness fee. (Altgelt v. Callaghan (Tex. Civ. App.), 144 S.W. 1166; Goodwin v. Smith, 68 Ind. 301; Barry v. McGrade, 14 Minn. 286; Hale v. Merrill, 27 Vt. 738; Grinnell v. Denison, 12 Wis. 402, 448.)

"Parties to actions or proceedings are entitled to costs and disbursements as hereinafter provided." (C. S., sec. 7206.)

It has been held that where a witness comes from without the state his fee should not be taxed against the losing party. (Union P. R. R. Co. v. Brower, 60 Colo. 579, 155 P. 312.)

BUDGE, J. Wm. E. Lee, C. J., and Taylor and T. Bailey Lee, JJ. , concur.

OPINION

BUDGE, J.

This appeal is from an order striking certain items from a cost bill and retaxing costs. The items stricken by said order were:

Witness fee of Wm. Edens, 1 day ($ 3.00), and mileage for said witness, 1 mile (25 [cent], $ 3.25.

Witness fee of W. O. Feenaughty, 1 day ($ 3.00), and mileage for said witness, distance actually traveled in state of Idaho in coming to the place of trial, state line to Pocatello (312 miles at 25 [cent] per mile, $ 78.00), $ 81.

In support of a motion to strike the above and other items from the cost bill submitted by appellant after recovery of judgment against respondent in an action on a promissory note, an affidavit was filed by counsel for respondent setting forth, among other things, that the witness Edens is an attorney at law and a member of the bar of the court in which the principal action was tried, and that his appearance as a witness was a courtesy extended to the attorney for appellant, for which said witness expected and required no compensation; and that the witness Feenaughty is the president of appellant company and substantially the owner thereof, and did not appear in the action simply as a witness but as a litigant for the purpose of directing the cause.

A counter-affidavit was filed by counsel for appellant, wherein it was admitted that the witness Edens is an attorney at law and that he appeared as a witness as a courtesy to counsel for appellant, but alleging that said Edens was not an attorney in the case nor in any way connected therewith; and admitting that the witness Feenaughty is the president of appellant company, but alleging that such fact does not bar him from the receipt of witness fees under C. S., sec. 8069, providing for fees to which witnesses in civil actions in the district court are entitled to receive.

It is suggested by respondent that it might be argued whether or not the appeal has been properly perfected, by reason of the absence of any bill of exceptions, "or a complete enough statement as to what the court used on a motion for retaxing costs as required by C. S., sec. 7164." The judge who tried the principal action and who made the order appealed from, certified that the papers used by him in deciding the motion to strike the items objected to are those included in the transcript "and constitute all the records, papers and files used or considered by said judge on such hearing." This is a sufficient compliance with the provisions of C. S., sec. 7164, as to the furnishing by appellant, on appeal from the order striking the two items above set out, of copies of the papers used on the hearing in the court below; and it has been held that no other papers have any place in such transcript. (Hall v. Jensen, 14 Idaho 165, 169, 93 P. 962.)

Appellant was not required to prepare and file a formal bill of exceptions to have the order appealed from reviewed by this court, such order appearing in the minutes of the district court and being included in the transcript. (C. S., secs. 6879, 7164; Thiessen v. Riggs, 5 Idaho 487, 51 P. 107; Hall v. Jensen, supra.) As bearing on this question it was said in Erickson v. Edward Rutledge Timber Co., 34 Idaho 754, 203 P. 1078:

"While there is no bill of exceptions here, settled and allowed incorporating the action of the...