Herson v. The Chicago & Alton Railroad Co.

• Decision Date: 15 June 1885
• Citation: Herson v. The Chicago & Alton Railroad Co., 18 Mo.App. 439 (Kan. App. 1885)
• Parties: JOHN HERSON, Appellant, v. THE CHICAGO AND ALTON RAILROAD COMPANY Respondent.
• Court: Kansas Court of Appeals

18 Mo.App. 439

JOHN HERSON, Appellant, v. THE CHICAGO AND ALTON RAILROAD COMPANY Respondent.

Court of Appeals of Missouri, Kansas City.

June 15, 1885

APPEAL from Jackson Circuit Court, HON. TURNER A. GILL, J.

Reversed and remanded.

The facts are sufficiently stated in the opinion of the court.

BOGGESS & MOORE, for the appellant.

I. The fees of a witness cannot be taxed as costs against the losing party in the trial of a cause, unless he necessarily attended the trial under the command of a subpœ na or recognizance Sect. 5620. Rev. Stat., Mo. 1879, as amended by acts of 1881, p. 135. It is the policy of our law to protect the losing party from unnecessary costs and expenses, and a witness whose attendance and mileage are taxed against him must have withdrawn himself from his business and necessarily attended the trial at the command of process. Hutchens v. The State, 8 Mo. 288; Driskell v. Parish, 5 McLean 241; Coken v. Pally's heirs, 51 Ala 511.

II. A volunteer witness, or one who attends at the mere request and for the accommodation of one of the parties to a suit, and testifies for him at the trial thereof, is not a witness within the terms and spirit of the sections above cited. He is not under the control of the court, can depart at any moment, and should he depart the court has no power to compel his return by attachment. Sect. 4023, Rev. Stat., Mo. 1879. It is contrary to the intention of said sections that a person so at liberty should be allowed attendance and mileage as a witness, to be taxed as costs.

III. The witnesses here attended the trial for the accommodation of defendant, and hence are not entitled to the fees taxed in their favor.

LATHROP & SMITH, for the respondent.

I. No appeal will lie from an order of the court, overruling a motion to re-tax costs, Sect. 3710, Rev. Stat., 1879; Boggess v. Cox, 48 Mo. 278; Conch v Fisher, 49 Mo. 371; Moran v. Plankenton, 53 Mo 243; Dale v. Wright, 57 Mo. 110; Conn v. Fereo, 60 Mo. 17; Evans v. Russell, 61 Mo. 37; Ernst. v. Steamer Brooklyn, 24 Wis. 616.

II. The fees allowed the two witnesses from Slater, for mileage and attendance were properly taxed as costs. Sect. 5620, Rev. Stat., Mo. 1879; Lonergan v. Ins. Co., 7 Bingham *725; Wheeler v. Lozee, 12 How. Pr. (N. Y.) 446; Moulton v. Townsend, 16 How. Pr. (N. Y.) 306; Vence v. Speir, 18 How. Pr. (N. Y.) 168; DeBenneville v. DeBenneville, 1 Binney (Pa.) 46; Price v. McGee, 1 Breo. (S. C.) *455; Anonymous, 5 Blatch. 134; Dutcher v. Justices, etc., 38 Georgia 214; Farmer v. Storer, 11 Pick. (Mass.) 241.

III. The appeal should be dismissed.

OPINION

ELLISON J.

This cause was tried in the circuit court of Jackson county, at Kansas City, at its October term, 1883, and resulted in a judgment for the defendant.

The witnesses, John Hamilton and ____ Herryman came from Slater, Mo., (Saline county), to Kansas City, for the sole purpose of testifying, and did testify for the defendant at the trial of the cause. Their testimony was material for defendant. No process was served upon them requiring their presence, but they attended the trial voluntarily and at the instance and request of defendant only.

The clerk of said court taxed as cost, in the case, and against plaintiff, the sum of $10.50 in favor of each of said witnesses, making the aggregate of $21.00, being mileage from Slater to Kansas City and return, and one day's attendance at the rate allowed by statute to witnesses.

Thereupon at the same term of the court the plaintiff filed a motion for the re-taxing of said costs, which is in words and figures following:

" The plaintiff, against whom judgment was rendered for costs in the trial of the above entitled cause, moves the court to re-tax and abate the fees of John Hamilton and ____ Herryman, for the sum of $10.50 each, making $21.00 in the aggregate, as allowed them by the clerk of this court, as witnesses, and taxed as cost against the plaintiff, for the reason that said parties appeared before the court as witnesses for the defendant, voluntarily and without being summoned by any legal process whatever."

This motion was tried on the following statement of facts, viz: " The witnesses, Hamilton and Herryman, were summoned by no legal process whatever, but came from Slater, Mo., to Kansas City, Mo., at defendant's request, for the sole purpose of testifying, and did testify in the trial of this cause, for the defendant, and were material in the cause for the defendant.

That there was taxed in favor of said witnesses by the clerk and against the plaintiff, the sum of $10.50 each, being mileage to and from Slater and one day's attendance." No other evidence was offered.

The court overruled the motion and refused to re-tax said costs and entered judgment, on the motion, that plaintiff take nothing by the motion and that defendant go thereof without day, etc., to...