First Nat. Bank of Billings v. Custer Cnty.

• Decision Date: 27 January 1888
• Citation: 7 Mont. 464
• Parties: FIRST NAT. BANK OF BILLINGS v. CUSTER COUNTY.
• Court: Montana Supreme Court

7 Mont. 464

FIRST NAT. BANK OF BILLINGS

v.CUSTER COUNTY.

Supreme Court of the Territory of Montana.

January 27, 1888.

Appeal from district court, Custer county.

Action by the First National Bank, plaintiff and appellant, against the board of county commissioners of Custer county, defendant and respondent, to recover for witness fees.

Andrew F. Burleigh, for appellant.

Strevell & Garlock, for respondent.

McCONNELL, C. J.

This is an action brought to recover $117.80, witness fees, claimed by one Joseph Sheldon for attendance as a witness for the defendant in the case of Territory of Montana against Maurice Sullivan, tried in the county of Yellowstone on change of venue from the county of Custer, on the 25th of November, 1885. Plaintiff claims to be the owner of said account by purchase from Sheldon. There was a demurrer to the complaint, which was sustained, and the plaintiff chose to abide its amended complaint, and not to further amend. The case is here upon the judgment roll. It is averred in the demurrer that said complaint does not state facts sufficient to constitute a cause of action. The following extracts from the complaint are sufficient to present the questions for our determination, to-wit: “(3) That at a regular term of the district court in and for said county of Yellowstone, holden on the 23d day of November, 1885, a criminal action was then and there pending in said court, wherein the territory of Montana was plaintiff and Maurice Sullivan defendant; that said action had been removed to said county of Yellowstone for trial on a change of venue from the county of Custer; (4) that one Joseph Sheldon was a material witness for the defendant in the trial of said cause; that a subœoena was duly issued and served upon said Joseph Sheldon, requiring him to attend said court as a witness; that he obeyed said subœoena, and did attend said court to testify in said action at the instance of said defendant therein at the time and place named in said subœoena; (5) that the defendant, Maurice Sullivan, was tried and acquitted of the offense charged in said indictment on the 25th day of November, 1885; (6) that on the 27th day of November, A. D. 1885, said witness, Joseph Sheldon, made the necessary affidavit, as required by law, of his said attendance and mileage, which amounted to the sum of $117.80; that said account was thereafter approved by the district attorney of said judicial district, but was not certified by the acting judge of said district, nor by any other judge since that date; (7) that on or about the 29th day of November, 1885, said Joseph Sheldon assigned and transferred said claim for attendance and mileage to plaintiff, for a valuable consideration, and that plaintiff now owns the same; (8) that on the 9th day of December, 1885, the plaintiff presented his said claim to the board of commissioners of Custer county, at a regular meeting of said board, duly verified for allowance, but they failed and refused to allow the same, or any part thereof.” This complaint is fatally defective in several particulars.

1. Section 410, p. 479, Comp. St., provides: “In case the defendant shall be acquitted, or in case he shall be convicted, the executions shall issue against him for the costs, and shall be returned unsatisfied, in whole or in part, the costs remaining unpaid shall be paid by the county in which the offense was committed, and in case the conviction or acquittal shall be in a county other than that in which the offense was committed, it shall be the duty of the judge before whom the trial was had, and the district attorney prosecuting such defendant, to certify under their hand, authenticated by the seal of the court, the amount of such costs; and it shall be the duty of the board of county commissioners of the county in which such offense was committed to audit and allow the amount of such costs, and issue an order therefor upon the county treasurer of such county.” It will be seen that the complaint simply alleges in substance that the witness, Joseph Sheldon, was a material witness for the defendant in the trial of said cause, and that a subpœoena was duly issued and served upon him to attend court as a witness, and that he obeyed said subpœoena, and did attend said court, and testified in said action, at the instance of said defendant, at the time and place named in the subpœoena; that the defendant in that action was Sullivan, and that he was acquitted of the offense charged in the indictment; that said witness Sheldon made the necessary affidavit, as required by law, of his attendance and mileage, which amounted to the sum sued for; that the account was approved by the district attorney, but was not certified to by the acting judge of the district, nor by any other judge since...