Young v. Merchants' Ins. Co.
| Decision Date | 10 December 1886 |
| Citation | 29 F. 273 |
| Parties | YOUNG v. MERCHANTS' INS. CO. OF NEWARK, N.J. |
| Court | U.S. Court of Appeals — Fourth Circuit |
De Bruhl and Mitchell & Smith, for plaintiff.
H. R Jackson, Jr., for defendant.
This is a question of taxation of costs, coming up on review of a taxation by the clerk of this court. The action was on a policy of insurance. It was originally brought in the circuit court of South Carolina, sitting for the county of Abbeville and was removed into this court, the controversy being between a citizen of South Carolina and a corporation created under the laws of the state of New Jersey.
The first question is as to costs incurred in the state court. As we have seen, the action was commenced in the state court. A petition for removal, with every formality required by law was filed on seventeenth October, 1884, to the first term at which the case was triable. The case was within the act of congress. The state court had no power to refuse the removal, could do nothing to affect the right of removal, and its rightful jurisdiction ceased eo instanti. Dill. Rem. Causes, (3d Ed.) 92. Every subsequent exercise of jurisdiction was null and void, and every step coram non judice. Dill. Rem. Causes, (3d Ed.) 93, note; Steam-ship Co. v. Tugman, 106 U.S. 122; S.C. 1 S.Ct. 58. Nor is the adverse party entitled to notice of the time and place of presenting the motion. Dill. Rem. Causes, (3d Ed.) 92, note 2. This being the case, all costs taxed for witnesses in the state court on subpoena issued, as is admitted, after seventeenth October, 1884, are disallowed, and all costs of the clerk and sheriff after that date are not chargeable on defendant.
The action having been removed, and motion to remand having been refused, was tried in this court, April term, 1885, and resulted in a verdict for the plaintiff, which was set aside. It was tried again at April term, 1886, resulted in a verdict for plaintiff, and a motion to set aside the verdict was refused.
The witnesses resided more than 100 miles from the place of trial, but were residents in South Carolina, in the county of Abbeville, for the most part. Abbeville is in what is known as the Western district of South Carolina. The place of trial was at Charleston, in what is known as the Eastern district. All, or nearly all, of the witnesses on the first trial were also witnesses under subpoena in another cause between the same plaintiff and another insurance company, known as the Farmers' Insurance Company, and were paid per diem and mileage. The number was 13 in all. At the trial in April, 1885, when witnesses were called as to the value of the property, the defendant's attorney admitted as proved the testimony they were prepared to give, and they were not examined. Thirteen witnesses were present under subpoena. There is no evidence that plaintiff has paid them their per diem and mileage. The clerk has taxed up as costs per diem and full mileage for those witnesses.
The first objection taken by defendant is that mileage cannot be taxed for witnesses who reside more than 100 miles from the place of trial,-- certainly for not more than 100 miles going, and the same number returning. Mileage can be charged in every instance in which a subpoena can be issued and enforced. The subpoena can be used to compel the attendance of a witness, if he lives within the jurisdiction of the court out of which it is issued, or, if he be without the jurisdiction, if he live within 100 miles of the place of trial. Dreskill v. Parish, 5 McLean, 241; Anon, 5 Blatchf. 134; Spaulding v. Tucker, 2 Sawy. 50. All parts of the state of South Carolina are within the jurisdiction of this court. Its process runs all through the state. It does not know, in the sense which affects its jurisdiction, either the Eastern or Western district. This objection is overruled.
That any or all of the witnesses examined in this action in April, 1885, were also in attendance on the court in another cause, not between the same parties, and that they have been paid for such attendance, cannot deprive them of their right to per diem and mileage in this case. If they were under subpoena to testify in this case, and so came and attended, they have earned their compensation. Parker v. Bigler, 1 Fish. 285, quoted by Desty, Fed. Proc. 445. This exception is overruled.
Although 13 witnesses were examined, the plaintiff cannot tax per diem and mileage for more than three to each issue. Bussard v Catalin, 2...
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