Simpkins v. Atchison, T. & S.F.R. Co.
| Decision Date | 11 June 1894 |
| Docket Number | 1,812. |
| Citation | 61 F. 999 |
| Court | U.S. District Court — Western District of Missouri |
| Parties | SIMPKINS v. ATCHISON, T. & S.F.R. CO. |
Harry K. West, for plaintiff.
Gardiner Lathrop and S.W. Moore, for defendant.
Motion is made by defendant to retax the costs taxed against the defendant for the following named witnesses: Charles Simpkins, R. M. Sharp, S. E. Sharp, Earl Hulse, and Mrs Grace Snyder. The facts are that the plaintiff and said Charles Simpkins had pending in this court, set for trial on the same day, separate suits for injuries growing out of the same accident. Charles Simpkins was subpoenaed as a witness on behalf of his father, the plaintiff herein. He was sworn as a witness, and placed upon the witness stand. The rule having been made on motion of counsel for the separation of the witnesses, it was suggested, on Charles Simpkins taking the witness stand, that he should not testify first, provided the plaintiff himself proposed to testify. Thereat he was withdrawn for the time, and was not introduced or examined. The witnesses R. M. and S. E. Sharp also attended court, but were not introduced as witnesses in the case. It seems to be a well-settled rule of law and practice that where witnesses are subpoenaed, but are not introduced to testify, the presumption is that their testimony was not material, and that they were unnecessarily brought to court as such witnesses. The rule is not otherwise where the parties or counsel, either through a misconstruction of the pleadings or a misunderstanding of the law arising in the case, believe that the testimony of such witnesses may become material in the progress of the trial. The fact that they are not presented to testify in the case and are not examined is conclusive that they were not material, and their presence unnecessary, and the party who thus brings them to court should be held responsible for their costs. Pugh v. Good (Or.) 23 P. 827; Deweese v. Smiley (Ind. App.) 27 N.E. 444; Osborne v. Gray, 32 Minn. 53, 19 N.W. 81; Pike v. Nash, 16 How.Pr. 53; Dean v. Williams, 6 Hill, 376.
Objection is made to the taxation of fees in favor of Earl Hulse and Mrs. Grace Snyder for their attendance at some other term of court than the one at which the case was tried, for the reason that no subpoenas for these witnesses are found among the files in the case; but these witnesses did attend court at said term upon the request...
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...however, if it appears that an order of court or other circumstance rendered their testimony unnecessary. Simpkins v. Atchison, T. & S. F. R. Co., C.C. Mo., 61 F. 999; Treadwell v. Mutual Life Ins. Co. of New York, D.C.La., 20 F.Supp. 494. In this instance the record discloses that the orde......
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