In re Hulme's Estate

• Decision Date: 15 April 1919
• Docket Number: No. 32246.,32246.
• Citation: 185 Iowa 1219,171 N.W. 599
• Parties: IN RE HULME'S ESTATE.
• Court: Iowa Supreme Court

185 Iowa 1219

171 N.W. 599

IN RE HULME'S ESTATE.

No. 32246.

Supreme Court of Iowa.

April 15, 1919.

Appeal from District Court, Winnebago County; C. H. Kelley, Judge.

Appeal from an order of the district court for the taxation of costs. The facts are stated in the opinion. Modified and remanded.Jensen & Jensen, of Forest City, for appellant.

Thompson, Loth & Sifford, of Forest City, for appellee.

WEAVER, J.

The executor of the will of Anna Hulme, deceased, having made final report of his trust, exceptions thereto were taken by the appellee, Alice Reimers, one of the beneficiaries of the estate. At the trial of the issues so raised the appellee produced a witness, William J. Reimers, who testified in support of the exceptions taken to the executor's report. This witness was a resident of the state of Idaho, and came from his home to Forest City, in this state, a distance of 934 miles, without subpœna, but at the request of the appellee, for the purpose of giving testimony upon the hearing. The exceptions to the report were sustained, and the executor ordered to make accounting for property to the amount of $2,000 or more in excess of his original showing. In assessing the costs the clerk first taxed to the executor in favor of said witness for five days' attendance and 70 miles travel. Thereupon appellee moved for a retaxation of such portion of the costs and that the witness be allowed full mileage from his home to the place of trial instead of 70 miles, as entered by the clerk. This application was sustained, and the mileage was reassessed on the basis of the entire distance traveled, and the executor appeals.

Counsel argue in support of the appeal: First, that as the witness came to the place of trial voluntarily, without subpœna, he is not entitled to any allowance of mileage; second, that as our statute limits the compulsory attendance of a witness upon subpœna to 70 miles, such distance should be the maximum limit of taxable mileage.

[1][2] This question in some of its aspects has had the attention of the court on several occasions. It seems to be settled, and such is the reasonable effect of the statute, that the fight to have fees taxed for the attendance and mileage of witnesses does not necessarily depend upon service of subpœna. The principal office of a subpœna is to compel the appearance of witnesses who are within reach of such process, and would not otherwise attend the trial, but, if they appear voluntarily at the request of the party desiring their testimony and submit themselves to examination without compulsion, there can be no good reason for denying them the usual compensation simply because they waived their right to refuse to attend without the service of subpœna. As said by us in Duree v. Railway Co., 118 Iowa, 644, 92 N. W. 891, if the witness attend voluntarily, the service of subpœna “would be superfluous and of benefit to neither party. The omission to swell the costs with the additional expense in officer's fees * * * for issuing and serving the subpœnas furnishes no ground of complaint for the other side.” To...