Mylius v. St. Louis

• Decision Date: 03 January 1884
• Citation: 1 P. 619,31 Kan. 232
• Court: Kansas Supreme Court
• Parties: L. H. MYLIUS v. THE ST. LOUIS, FORT SCOTT & WICHITA RAILROAD COMPANY

1 P. 619

31 Kan. 232

L. H. MYLIUS v. THE ST. LOUIS, FORT SCOTT & WICHITA RAILROAD COMPANY

Supreme Court of Kansas

January 3, 1884

Error from Miami District Court.

AT the May Term, 1883, the court sustained the motion of the defendant Railroad Company to retax the costs in a certain action wherein plaintiff Mylius recovered a judgment against it. This ruling the plaintiff brings here.

Judgment affirmed.

J. D McCleverty, for plaintiff in error.

J. H Sallee, and W. C. Perry, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was a motion to retax costs; and the facts, as shown by the record, are as follows: The defendant, the railroad company, instituted proceedings to condemn a right-of-way across the plaintiff's land, situated in Bourbon county. The plaintiff, Mylius, took an appeal from the award of the commissioners to the district court of Bourbon county. At the next term of the district court the railroad company asked for a change of venue to some other district, because the then judge of the district court had previously been an attorney in the case. The change of venue was thereupon ordered, and the cause went to Miami county for trial. Both parties had subpoenas issued to the sheriff of Bourbon county, who served the same upon witnesses in that county. The witnesses responded to these subpoenas, and attended the district court of Miami county, and were sworn and examined as witnesses. The jury found for plaintiff in the sum of $ 350, and plaintiff had judgment for costs. The clerk taxed up and allowed these witnesses mileage fees, from their places of residence in Bourbon county to Paola, Miami county, and return, and also the fees of the sheriff of Bourbon county for serving the plaintiff's subpoenas. The amount so taxed for mileage for plaintiff's witnesses was $ 100.20; for sheriff's fees, $ 6.40; total, $ 106.60. The witnesses actually traveled the distance by each claimed. None of them were served with subpoenas except as above stated, in Bourbon county. The distance traveled by each of the plaintiff's witnesses within Miami county was thirty miles.

The defendant filed a motion to retax these costs, claiming them to be illegal. The court sustained the motion, and disallowed all fees for mileage for the plaintiff's witnesses, and the fees of the sheriff of Bourbon county for serving subpoenas in that county. The plaintiff excepted, and brings the case here for review on error; and he claims that there are really three disputed questions in the case:

"1. Is a witness residing in one county in this state, who attends court in another county, entitled to mileage for the whole distance actually traveled in attending court?

"2. If not for the whole distance, is he then entitled to mileage for the distance actually traveled within the county where he attends court, although not served with a subpena within that county?

"3. Is a sheriff entitled to receive fees for serving within his county a subpena issued from the district court of another county?"

The foregoing is hardly an accurate statement of the questions involved in this case. The questions are not whether a witness who resides in one county and attends the district court in another county is entitled to milage fees, or not; and whether a sheriff who has served within his own county a subpena issued from the district court of another county, is entitled to service fees, or not; but the question is, whether the party who has caused such services to be rendered by the sheriff and witness is entitled to recover a judgment against the other party for such services. It may be that, when a party causes a subpena to be issued from the district court of one county into another county, and causes the sheriff of this other county to serve the same, and thereby causes a witness to leave his own county to attend the district court of the first-mentioned county, such party is liable for all the fees of the sheriff and witness, and that the sheriff and witness are entitled to recover the same from him; but the question in this case is whether such party is then entitled to recover the same from the other party. No question has been raised in this case with reference to the fees of the witnesses for their per diem services in attending the district court in Miami county. We suppose they were allowed by ...