64 S.E. 411 | S.C. | 1909
April 20, 1909. The opinion of the Court was delivered by This appeal is from an order of Judge Hydrick setting aside the clerk's taxation of costs in the above stated case.
On plaintiff's motion a nonsuit had been ordered, with costs taxable against plaintiff. The clerk taxed among other things, the per diem and mileage of nine witnesses, aggregating one hundred and fifty-six dollars and ten cents, the matter in dispute. The claim was supported by the affidavit of one of the counsel for defendant, declaring the number of days each witness had been in attendance upon Court and the number of miles each one had traveled in so doing. It appears that none of the witnesses were summoned by subpoena and it also appears that none of them were sworn, as the nonsuit was ordered upon the call of the case for trial. Counsel for plaintiff contended before the clerk that the affidavit of each witness should be required to show the per diem and mileage to which he is entitled. The clerk held that the affidavit submitted was sufficient and taxed the costs as claimed. Plaintiff moved the Circuit Court to set aside said taxation (1) because the witnesses were not summoned by subpoena, (2) because there was no affidavits of the several witnesses as to their per diem and mileage, (3) because it was not shown that the witnesses were material, (4) because the affidavit of counsel was not the best evidence.
Judge Hydrick overruled the first contention, holding that when a witness has attended Court voluntarily at the request of a party he is entitled to his costs upon proof of the fact, and cites the opinion of Chief Justice McIver in Lewis v. *476 Brown,
Notwithstanding this view of the learned Chief Justice McIver, we are constrained to think that, whatever may be the right of a witness attending voluntarily at the request of a party as against that party for compensation, it is a different question when attempt is made to tax fees against the adverse party, in which case the claimant must bring himself strictly within the terms of the statute. Under the practice before the adoption of the present statute, in order to tax the costs of a witness, it was necessary that the witness be subpoenaed. Clark v. Linsseer, 1 Bailey, 190; Love v. Ingram, 2 Speers., 88. We know of no statute authorizing a different rule and there is no good reason for departing from it now.
The Circuit Court sustained the second contention of plaintiff, under the authority of Clark v. Linsseer, 1 Bailey, 187, in the absence of any showing as to why the affidavits of the witnesses could not be obtained, and we concur in this ruling. The witness knows better than any one else how many days he attended Court pursuant to the summons or subpoena and how many miles he traveled, and the law requires the best evidence available. The affidavit of some one else would likely be based more or less upon information and belief. The affidavit of the witness would tend to purge his conscience and be the best evidence that he intended to make claim for his fees. It is not contended that the defendant has paid these fees and is claiming them as disbursements. *478
Upon the third ground of objection to the taxation of costs, the Circuit Court held that, if it appeared that the witnesses were not sworn, then it should appear by affidavit that their attendance was procured in good faith, and if required it should be made to appear at leastprima facie that they were material or intended to be so. The ruling was correct, and is supported by Love v.Ingram, 2 Speer, 87; Farr v. Farr, 2 Hill, 554; Taylor v.McMahan, 2 Bailey, 131; Winsmith v. Dewberry,
The remaining ground of objection is involved and disposed of in the foregoing considerations.
The judgment of the Circuit Court is affirmed.