United Development Corp. v. State Highway Dept.

• Decision Date: 18 January 1965
• Docket Number: No. 8141,8141
• Parties: UNITED DEVELOPMENT CORPORATION, Plaintiff and Respondent, v. STATE HIGHWAY DEPARTMENT of the State of North Dakota, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 439

133 N.W.2d 439

22 A.L.R.3d 662

UNITED DEVELOPMENT CORPORATION, Plaintiff and Respondent, v. STATE HIGHWAY DEPARTMENT of the State of North Dakota Defendant and Appellant.

No. 8141.

Supreme Court of North Dakota.

Jan. 18, 1965.

On Rehearing March 11, 1965.

Syllabus by the Court

1. Costs may be recovered only in cases where there is statutory authority therefor, and may be recovered only to the extent and in the manner provided by law.

2. 'Reasonable actual or statutory costs' allowed by the court and provided for in eminent-domain proceedings (Sec. 32-15-32, N.D.C.C.) must be in amounts not to exceed statutory costs fixed by the Legislature for various items of taxable costs. The discretion given to the trial court in fixing costs must be exercised within the limits fixed by law.

3. Where a witness is called but is not permitted to testify because his testimony is ruled inadmissible, no fee may be taxed against the adverse party for such witness.

4. Witness fees may be taxed only for days of attendance at trial, while testifying or waiting to testify, and not for time spent in coming and going, for time during which a case is in postponement, or for time necessary for preparation for trial.

5. The mere fact that a witness appears voluntarily, without subpoena, does not prevent taxation of his fee if he is actually called and testifies or otherwise qualifies as a witness in the case.

6. Costs for preparation of maps for use at the trial are taxable by the prevailing party if such maps are evidence necessarily used or obtained for use on the trial. If such maps are merely convenient or useful for purposes of argument, the expense of obtaining them cannot be taxed as costs.

7. Interest from the time of taking of land by eminent domain to the time of verdict cannot be taxed as costs.

8. Where judgment is for recovery of money, interest from the time of verdict until judgment is entered must be computed by the clerk and added to the costs.

9. Attorney fees may not be taxed against the losing party unless specifically authorized by statute.

10. In eminent-domain proceedings in this State, where the Legislative Assembly has made provision for reasonable costs, 'which may include reasonable attorney's fees,' such attorney fees taxed against the losing party are limited to a fair and reasonable amount to be determined by the trial court in its discretion. In arriving at such reasonable attorney fees, various factors are to be considered by the court, including the amount and the character of the services rendered, the results obtained, the customary charge for such services, and the ability and skill of the attorney rendering the services.

11. Attorney fees to be taxable by the prevailing party must have been for services rendered for such party, and a prevailing party may not include as costs taxed in an action attorney fees paid by a person not a party to the action to its attorney.

McGee, Van Sickle & Hankla, Minot, and Higgins & Crum, Bismarck, for plaintiff and respondent.

Helgi Johanneson, Atty. Gen., and Jon R. Kerian and David L. Milhollan, Sp. Asst. Attys. Gen., Bismarck, for defendant and appellant.

STRUTZ, Judge.

This is an appeal by the State Highway Department from an award of osts in an eminent-domain proceeding. The main action, from which no appeal was taken, was tried before the court and jury. After verdict, a motion was made for entry of judgment and taxation of costs by United Development Corporation, the prevailing party. The court made its award of costs, and this appeal is from that part of the judgment awarding certain costs, attorney fees, and interest.

The State Highway Department, with its notice of appeal, served five specifications of error contending:

1. That the trial court erred in granting witness fees to the plaintiff; that there is no authority in law for awarding witness fees; and that, in any event, the witness fees awarded by the court were excessive;

2. That the court erred in awarding costs for preparation of maps for use at the tril;

3. That the court erred in its award of interest on the amount of the judgment from the date of taking of plaintiff's land;

4. That the court erred in awarding attorney fees to the plaintiff's attorneys, in that fees awarded are excessive and unreasonable; and

5. That the court erred in awarding attorney fees to the attorney representing the interests of the sellers of the land in question to the plaintiff landowner; that such former owners were not in any way affected by the outcome of the eminent-domain proceeding and that taxing attorney fees for services rendered by the attorney of such former owners was error.

Costs, ordinarily, may be recovered only in cases where there is statutory authority therefor, and then only to the extent and in the manner provided by law. 20 C.J.S. Costs Sec. 2, p. 259; 14 Am.Jur., 'Costs,' Sec. 6, p. 6.

Our Legislative Assembly has made provision for taxation of costs by a prevailing party. Chap. 28-26, N.D.C.C. It has also provided for payment of costs to the owner of an interest in real estate whose property is being taken by eminent-domain proceedings. Sec. 32-15-32, N.D.C.C. This latter section provides that the court may, in its discretion, award 'reasonable actual or statutory costs or both which may include reasonable attorney's fees.'

The matter of taxing costs in ordinary legal actions has seldom been before this court, while the question of what costs may be taxed under Section 32-15-32 of the North Dakota Century Code, the section providing for the taxation of costs in eminent-domain proceedings, has never been before us.

We now will consider the specifications of error assigned by the appellant in the order in which they are raised.

First, did the trial court err in taxing witness fees in favor of the plaintiff? And, if witness fees are taxable, under what circumstances and in what amount may they be allowed?

The right of a witness to compensation is purely statutory. 97 C.J.S. Witnesses Sec. 35, p. 421. At common law, no witness fees were paid. It was thought that the administration of justice, being a source of mutual benefit to all members of society, placed each person under obligation to aid in furthering justice as a matter of public and civic duty, and that every citizen could be summoned to appear without right on his part to compensation for doing so. 58 Am.Jur., 'Witnesses,' Sec. 874, p. 501.

Our Legislative Assembly, however, has provided for the payment of witness fees. Section 31-01-16, North Dakota Century Code, provides that a witness in a civil action is entitled to receive six dollars a day 'for each day's attendance before the district court * * *' puls ten cents a mile actually traveled one way.

Because of the difficulty in getting professional men who are experts in their fields to leave their work for so small a fee and because of the injustice of requiring busy professional men to attend a trial and to testify for so inadequate a remuneration, the Legislative Assembly thereafter enacted Section 28-26-06, North Dakota Century Code, which provides, in part, for the allowance of expert-witness fees in an amount not to exceed fifty dollars a day plus such witness's 'actual expense.' This section further provides that the amount of such 'actual expense' to be paid such expert witness is in the discretion of the trial court.

Section 32-15-32, North Dakota Century Code, provides that the court may, in its discretion, award reasonable actual or statutory costs, or both, in eminent-domain proceedings. Such reasonable actual or statutory costs would include witness fees, expert as well as ordinary, since fees for both types of witnesses are provided for by law. The various statutory provisions on taxation of costs must be considered together and, if possible, apparently conflicting provisions should be made to harmonize.

In this case, we find that both of these statutes were enacted by the same session of the Legislative Assembly. Section 28-26-06(5), providing for expert-witness fees, was reenacted as a part of Chapter 215 of the 1957 Session Laws, whereas Section 32-15-32, providing for taxation of costs in eminent-domain proceedings, was enacted as Chapter 226 of the 1957 Session Laws. While it is true that Chapter 226 was signed by the Governor after he had signed Chapter 215, which thus would make its provisions controlling if they conflicted with the provisions of Chapter 226, both of these chapters passed by the same session of the Legislature can be given effect. We believe it is not unreasonable to infer that the Assembly had both of these Acts in mind when it passed Chapter 226, now Section 32-15-32 of the North Dakota Century Code, by which the Legislature provided for costs to be taxed to the prevailing party in eminent-domain proceedings. In passing this statute, the Legislature had in mind that it had also enacted Chapter 215, limiting the amount which could be taxed as costs for expert witnesses to fifty dollars a day plus actual expenses.

It therefore is our opinion that the language 'reasonable actual or statutory costs or both,' as used in Section 32-15-32 of the Century Code (Chapter 226 of the Session Laws of 1957), must be interpreted to award costs, including an amount not in excess of the sums which the Legislative Assembly had provided for expert witnesses in Section 28-26-06 (Chapter 215 of the Session Laws of 1957). In other words, if the actual fee charged by an expert witness is less than the maximum fixed by law, of fifty dollars a day plus his actual expenses, the court could, in its discretion, allow the actual fee paid. Where the amount paid is the maximum allowed under the law, the court could, if such is found to be reasonable, allow the same. In such event the fee would, at the same time, be both the actual and the statutory fee. But where the amount paid to such witness is in excess of the statutory limit, ...