Humphries v. Starns
| Decision Date | 30 December 1949 |
| Docket Number | No. A-4979.,A-4979. |
| Citation | 87 F. Supp. 374 |
| Parties | HUMPHRIES et al. v. STARNS et al. |
| Court | U.S. District Court — District of Alaska |
McCutcheon & Nesbett, Anchorage, Alaska, for plaintiffs.
Hellenthal, Hellenthal & Cottis, Anchorage, Alaska, for defendants.
Defendants have filed objections to plaintiffs' amended cost bill, the controversial items of which are as follows:
"Witness fees
Harry Prator 7 days @ $6.00 $42.00
Jack Barrett 7 days @ $6.00 $42.00
Harry Andrews 7 days @ $6.00 $42.00
Frank V. Jones 7 days @ $6.00 $42.00
Howard Robinson 7 days @ $6.00 $42.00
Jack Castlio 7 days @ $6.00 $42.00
Dorothy Cavin 7 days @ $6.00 $42.00
Eldon Helgelien 7 days @ $6.00 $42.00
$336.00"
"Expenses incurred in travel for
Attorney William Alward
from his home in Herington
Kansas to Anchorage, Alaska
and return to represent
plaintiffs in default proceedings
held in above case on or
about the 13th day of May
1948 .............................. $857.28
"Mileage fees
"Vern Humphries, from Kansas
City to Anchorage
Alaska and return for default
proceedings and for
trial of action @ 10¢ per
mile from Kansas City to
Juneau, Alaska, and @ 22¢
per mile from Juneau to
Anchorage, Alaska ................ $1,714.16
"Marvin Campbell, from Kansas
City to Anchorage,
Alaska and return for default
proceedings and for
trial of action @ 10¢ per
mile from Kansas City to
Juneau, Alaska, and @ 22¢
per mile from Juneau to
Anchorage, Alaska................. $1,714.16
"Vern Humphries — days necessarily
absent from home
— 13 days @ $6.00 per day $78.00
"Marvin Campbell — days
necessarily absent from
home — 13 days @ $6.00 per
day ............................... 78.00"
1. The defendants object to the allowance of $3 for marshal's fees for service upon the defendant Glen Phillips, upon the ground that no judgment was entered against that defendant. This objection should be sustained, 20 C.J.S., Costs, § 215, p. 452, the text reading as follows: "Where part of the defendants are successful and part are unsuccessful, the cost of bringing the successful defendants into court should be taxed against plaintiff and not against the unsuccessful defendants." This rule is stated in Victor v. Adams, 1926, 140 Miss. 643, 106 So. 433, 435.
2. The defendants next object to all witness fees above the sum of $3 per day. With respect to this objection it is first necessary to look to the pertinent statutes. Section 25, 48 U.S.C.A. provides: "In case the law requires or authorizes any services to be performed or any act to be done by any official or person within the Territory of Alaska, and provides no compensation therefor, the Attorney General may prescribe and promulgate a schedule of such fees, mileage, or other compensation as shall be by him deemed proper for each division of the court, and such schedule shall have the force and effect of law; * * *".
Sec. 55-11-52, A.C.L.A.1949 provides that:
Sec. 55-11-55, A.C.L.A.1949 provides: "A party entitled to costs shall also be allowed for all necessary disbursements, including the fees of officers and witnesses, * * * witness fees for each day a witness is necessarily absent from his usual place of abode by reason of attendance upon court, with traveling expenses at fifteen cents per mile actually and necessarily travelled * * *"
On the basis of these statutes, the Attorney General issued a schedule of fees for witnesses, effective February 1, 1945, in which it provided that the witnesses should have:
Accordingly, witnesses are entitled to more than $3.00 a day, when they reside too far from the court to return home at night. The cost bill is defective in that it does not set forth the place of residence of the witnesses. Qualley v. Aitken, 4 Alaska 291, 296. The court cannot charge defendants with subsistence for the witnesses since they may be able to return to their places of residence at the end of each day. On the basis of the amended cost bill as submitted, the objection must be sustained.
3. The amended cost bill asks that witness fees be allowed each of eight witnesses for a period of seven days. If it is necessary for a witness to be in attendance throughout a long trial he is entitled to witness fees even though the trial was an extended one. Donato v. Parker Pen Co., 1945, 7 F.R.D. 148. In the case of Qualley v. Aitken, supra, the cost bill contained an item charging witness fees for 30 days attendance; however, this witness had not been subpoenaed and there was no showing in the cost bill as to the number of days he was in attendance, although court records show that he was only called to testify one day. The court allowed witness fees for only one day. If a material witness who testifies is required to remain in attendance throughout the trial such attendance is presumed necessary in the absence of a showing to the contrary, and the per diem may be allowed for each day he was in attendance whether he testified or not. United States v. Hoxie, 1930, 8 Alaska, 210. It has also been held that where plaintiff's affidavit that witness was in attendance in court for six days was the only proof offered, allowance of witness fees for six days was proper. Reidy v. Myntti, 1940, 9 Alaska 639.
It is now necessary to determine whether the information set forth in the amended cost bill is sufficient to justify allowance of fees for six days for each of the eight witnesses named. The statements in the amended cost bill on this point are brief in the extreme, and do not show that these witnesses were ever in attendance or that any of them testified. The plaintiffs may not be allowed such fees on the basis of the amended cost bill as it now stands.
4. The amended cost bill also contains a charge of $857.28 as expenses incurred in travel by Attorney William Alward from his home in Kansas to Anchorage and return, to represent plaintiff in default proceedings held in this case on or about May 13, 1948. The record is barren of anything to show that Mr. Alward ever appeared as attorney for the plaintiffs in this action. Nothing in the law authorizes the payment of traveling expenses of an attorney, who resides in one of the States, to Alaska and return, in order to represent the prevailing party in any suit in the District Court of Alaska. Evidently, the item of costs covering the traveling expense of William Alward is not based upon any claim for attorney's fees. The defendants' objections to this item in the cost bill are sustained.
5. The defendants object to the mileage fees charged for plaintiff Vern Humphries on several grounds. The objection...
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