Lucas v. Brown
| Decision Date | 06 January 1908 |
| Citation | 106 S.W. 1089,127 Mo.App. 645 |
| Parties | JAMES R. LUCAS, Respondent, v. LUCY M. BROWN, Guardian, etc., et al., Appellants |
| Court | Kansas Court of Appeals |
Appeal from Polk Circuit Court.--Hon. Argus Cox, Judge.
AFFIRMED.
Judgment affirmed.
J. C Hargus, Chas. W. Sloan and C. H. Skinker for appellants.
(1) This being a proceeding to condemn land for a private road all costs in the proceedings should have been adjudged against the petitioner and respondent. R. S. 1899, secs 9462, 9464. And it was error on the face of the record and under the evidence adduced on the hearing of the motion to retax the costs, to tax up any part of said costs to appellants, the landowners. (2) A subpoena is a writ, summons or process commanding the appearance of a party under the penalty of disobedience to appear before the court. 2 Rapalje & Lawrence's Law Dictionary (1883), 1229; R. S. 1899 secs. 4661, 4662, 4671; Larimore v. Bobb, 114 Mo. 462; State v. Huff, 161 Mo. 492; 20 Ency. of Pl. and Pr., 1101, 1103; Horton v. Railroad, 26 Mo.App. 355; Wilson v. Railroad, 53 Mo.App. 342; McHoney v. Kerwin, 56 Mo.App. 462. (3) And a witness may waive service of subpoena by an officer and claim for attendance although there is no express statute authorizing it. Wilson v. Railroad, 53 Mo.App. 342; McHoney v. Kerwin, 56 Mo.App. 462. (4) The witnesses served by sheriff of St. Clair county had the right to and did properly claim for attendance at the trial being sworn by clerk as required by statute during the term. R. S. 1899, sec. 3260; Wilson v. Railroad, 53 Mo.App. 344, Veidt v. Railroad, 109 Mo.App. 102. (5) The subpoenas when delivered to sheriff of St. Clair county were complete and authorized sheriff to serve same; the process was fair on its face. R. S. 1899, sec. 4661, 4662, 4671; Turner v. Franklin, 29 Mo. 285; Glasgow v. Rowse, 43 Mo. 479; State to use v. Dulle, 48 Mo. 288; Merchant v. Bothwell, 60 Mo.App. 341; State ex rel. v. Rainey, 99 Mo.App. 230. And the witnesses were bound to obey the process under penalty for disobedience. R. S. 1899, secs. 4664, 4665, 4666, 4667. (6) Where not violative of any statutory provision the practice under which a clerk has been accustomed to subscribe his name to a blank writ of summons and deliver it to the attorney with authority to fill up such blank and turn it over to the sheriff has been approved in many States. 20 Ency. of Pl. and Pr., 1110; Slater v. Carter, 35 Ala. 679; Stevens v. Ewer, 2 Met. (Mass.) 74; Potter v. Mfg. Co., 87 Mich. 59; Sweet v. Palmer, 95 Mich. 450, 54 N.W. 951; Merrill v. Townsend, 5 Paige (N. Y.) 80; Croon v. Morrisey, 63 N.C. 591; Wright v. Wheeler, 8 Ired. (N. C.) 184; 30 N.C. 184; Miller v. Hall, 1 Spears (S. C.) 1; Jewett v. Garrett, 47 F. 625 (U.S. Cir. Ct., N. J.); McWilliams v. Hopkins, 1 Wharton (Pa.) 276. (7) The evidence at the trial was undisputed that it was the general custom and practice for the clerk to sign and seal subpoenas and deliver to attorneys in the case to be filled out; that in this case the subpoenas were issued and sent to Hargus, attorney for appellants, on his request to be filled out. Aside from cases last cited we have no statute which expressly or by implication prohibits such practice; and our courts do recognize a practice with relation to serving and accepting service of subpoenas where there is found no express statute on the subject. Larimore v. Bobb, 114 Mo. 452; Wilson v. Railroad, 53 Mo.App. 344; McHoney v. Kerwin, 56 Mo.App. 462.
Lee E. Crook, Rechow & Pufahl and Mann & Daniel for respondent.
(1) Respondent is not liable for the costs of any witness who appeared in response to a subpoena that was issued in blank, and the names of such witnesses inserted therein by a person residing at Osceola, in St. Clair county. (2) Nor is respondent liable for the costs of the clerk issuing the three blank subpoenas, nor to the sheriff for serving the witnesses whose names were placed therein by the circuit clerk. Therefore the court properly retaxed the costs of these nine witnesses. (3) The compensation of witnesses and liability therefor, and the mode of compelling their attendance was statutory. 6 C. L. A. 2009. It is the holding in this State, that as at common law no recovery of costs was allowable, therefore the statutes were to be strictly construed. Price v. Clevenger, 99 Mo.App. 536; Veidt v. Railroad, 109 Mo.App. 102. (4) Our statute expressly provides that the subpoena shall contain the names of all witnesses, for whom a summons is required, by the same party in the same cause at the same time who reside in the same county. R. S. 1899, sec. 4662. The statute also provides that subpoenas shall be directed to the person summoned to testify, etc. R. S. 1899, sec. 4671.
--In a proceeding brought by plaintiff to establish a private road over land of defendants, a jury in the circuit court assessed defendants' damages at a greater amount than that awarded by commissioners in the county court. Judgment was entered against plaintiff on the verdict which included the costs of the proceedings incurred by defendants. Afterward, on motion of plaintiff to retax, the court struck out a number of items entered by the clerk as a part of the recoverable costs. Defendants appealed from the judgment sustaining the motion and present a number of grounds for reversal, only one of which we deem worthy of special consideration. It appears that the attendance at the trial of a number of defendants' witnesses was in response to subpoenas served by the sheriff which were incomplete at the time they left the hand of the clerk of the court. At the request of one of defendants' attorneys, the clerk officially signed and affixed the seal of the court to three subpoenas in which the names of the witnesses to be summoned were not inserted. These blanks were delivered to the attorney who, sometime after, had a clerk in his office write in the names of the witnesses and deliver the subpoenas to the sheriff for service.
The question we are called upon to decide is whether costs made in this manner by the successful party may be recovered from the losing party. As far as we are advised, it has not been before any of the appellate courts of this State for decision. We are cited to a number of decisions in other jurisdictions [Slater v. Carter, 35 Ala. 679; Stevens v. Ewer, 2 Metc. (Mass.) 74; Potter v. Hutchison Mfg. Co., 87 Mich. 59, 49 N.W. 517; Sweet v. Palmer, 54 N.W. 951; Merrill v. Townsend, 5 Paige Ch. 80; Croom v. Morrisey, 63 N.C. 591; Wright v. Wheeler, 8 Ired. (N. C.) 184; Miller v. Hall, 1 Spears (S. C.) 1; Jewett v. Garrett, 47 F. 625; M'Williams v. Hopkins, 1 Whart. 276; Craighead v. Martin, 25 Minn. 41; Seurer v. Horst, 31 Minn. 479, 18 N.W. 283; Phinney v. Donahue, 67 Iowa 192, 25 N.W. 126; Garrison v. Hoyt, 25 Mich. 509; Clark v. Lyman, 10 Pick. (Mass.) 45; Abney v. Ohio Lumber Co., 45 W.Va. 446, 32 S.E. 256), but they afford us little aid for the reason that the question must be answered by the construction which should be placed on the language employed in our own statutes relating to the subject, and it does not appear in any of the cases cited that the statutory law dealing with the subject of compelling the attendance of witnesses and of assessing against the defeated party the costs incurred by his opponent is the same as that in this State.
"At common law, no recovery of costs was allowed and when statutes were passed authorizing their allowance, they (the statutes) were always strictly construed (State ex rel. v. Seibert, 130 Mo. 202, 32 S.W. 670, and cases there cited), and this rule of statutory construction obtains in this state." [Veidt v. Railroad, 109 Mo.App. 102.] Under this rule, defendants should be permitted to recover from plaintiff only such costs as were incurred by them in substantial conformity to the provisions of pertinent statutes.
"In all civil actions, or proceedings of any kind, the party prevailing shall recover his costs against the other party, except in those cases in which a different provision is made by law." [R. S. 1899, sec. 1547.] In a proceeding to establish a private road "if any person through whose land such road passes shall object on account of the amount of damages awarded to him (by the commissioners) an issue shall be made up in said court, and a jury sworn to determine the amount of damages to which the objector is entitled, and judgment shall be given in conformity to such finding, and an order for the establishment of the road shall be made as above and the costs of the trial shall be paid by the objector if the award of the jury shall be the same or a less sum than that awarded by the commissioners, otherwise the costs shall be paid by the petitioner." [R. S. 1899, sec. 9464.] The word costs in these sections means costs legally made, i. e., costs which the statutes provide shall be assessed and entered by the clerk as the costs of the case to be paid by the losing party. In the present case, plaintiff, because of his failure to maintain in the circuit court the adequacy of the award of damages made by the commissioners should be treated, under the section of the statute last quoted, as the losing party.
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