Muhleman & Kayhoe, Inc. v. Brown
Citation | 50 A.2d 92,43 Del. 481 |
Decision Date | 01 November 1946 |
Docket Number | 85 |
Parties | MUHLEMAN & KAYHOE, INC., v. JACOB BROWN |
Court | Delaware Superior Court |
Except as here stated, the motion to tax costs is denied.
Alexander L. Nichols (of Morris, Steel and Nichols) for plaintiff.
S Lester Levy for defendant.
OPINION
In considering the application of the plaintiff, the above provisions must be my guide to the extent that they are applicable.
There is no question concerning the item of $ 10 paid by the plaintiff to the Prothonotary, it is not taxable as costs. It was deposited with the Prothonotary, as required by Section 5349 of the Revised Code of 1935, as a guarantee for the payment of the fees and costs in his office, and upon their payment by the defendant, the sum will be returned by the Prothonotary to the plaintiff.
The request that $ 2 be taxed for the expense of photostatic copies of exhibits is difficult to understand. Frequently permission is granted to litigants to withdraw exhibits and to substitute, in lieu thereof, photostatic copies. This, in most cases, can only be done by agreement of the parties, and when done, it is generally at the request of the party on behalf of whom the exhibits were introduced. In the absence of evidence showing the reason for the withdrawal of the exhibits, I will assume that they were withdrawn for the accommodation of the plaintiff. I am aware of no statutory provision which would permit me to order this item of $ 2 to be taxed as costs, and therefore it will not be so ordered.
With respect to the claim for witness fees and expenses, other than the authority given to the Court by Code Section 4706, to fix the fees for witnesses testifying as experts or in the capacity of professional men, I know of no provision of law which permits the Court to fix the amounts payable to witnesses as fees and expenses. The statute (Code Section 5362) specifically fixes such amounts at two dollars per day and three cents per mile going and returning. As in Delaware, "fee bills" are provided by law in many States. In those States having "fee bills," where the question has arisen, it has uniformly been held that the Courts are not at liberty to extend the provisions of the law. Some of the cases are Henry v. Murphy, 54 Ala. 246; Ex parte Badgett, 6 Ark. 280; Anonymous, 20 N.J.L. 112; Sinclair v. Missouri, K. & T. Co., 74 Mo. App. 500; Langan v. Whalen , 77 Neb. 658, 110 N.W. 668; Roberson v. Draney,54 Utah 525, 182 P. 212; Weinhagen v. Hayes, 179 Wis. 62, 190 N.W. 1002.
In Apperson v. Mutual Ben. Life Ins. Co., 38 N.J.L. 388, a question arose relating to witness fees, mileage and expenses, which is exactly like the question before me concerning those items. There application was made for the taxation and allowance of $ 100 paid to the witness for his attendance, $ 25.75 paid for railroad fare in traveling, $ 5.00 a day for two days, for the reasonable expenses of the witnesses' attendance upon the Court. It was claimed by the plaintiff that he should have an allowance for these sums, or some portion thereof. The Court said:
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