54 F. 278 | U.S. Circuit Court for the District of Western Tennessee | 1893
(after stating the facts.) Costs in the federal courts include, among” other items, “the amount paid printers and
Section 848 of the Revised Statutes, prescribing the fees of witnesses in the federal courts, is as follows:
“For each day’s attendance in court, or before any officer pursuant to law, one dollar and fifty cents, and five cents a mile for going from his place of residence to the place of trial or hearing and five cents a mile for returning.”
This provision is compiled from section 3 of the act of congress approved February 26, 1853, (10 St. at Large, p. 167,) the punctuation in the revision as quoted following that of the original act as published. The statutory provision relating to the issuance of subpoenas is the following:
“Subpoenas for witnesses who are required to attend a court of the United States, in any district, may run into any other district: provided, that in civil causes the witnesses living out of the district in which , the court is held do not live at a greater distance than one hundred miles from the. place of holding the same.” Rev. St. U. S. § 876.
Under this provision defendant could not have procured the issuance and legal service of process of subpoena to procure the attendance of these witnesses on the trial of the case if they resided out of the state, and more than 100 miles from the place of holding court. And, even though they lived within the reach of process under the statute, if they were material witnesses for the defendant upon the trial of the issues involved in the suit, and their voluntary attendance was procured, without subpoena, in entire good faith on the part of defendant, through its counsel, of which there cannot be the slightest doubt, it would seem to be wholly immaterial to the plaintiff whether they were actually subpoenaed or not. The only office of the writ is to nrocure the attendance of the witnesses, and good faith is no less required in procuring their attendance by means of compulsory process than voluntarily. A party will no more be allowed to multiply costs unnecessarily by the procurement under process of immaterial witnesses or material ones in numbers largely in excess of the reasonable requirements of a case, than without'process. Here these witnesses, no matter where their residences, might have been served with subpoena upon their arrival at the court, and, had writs issued for that purpose, plaintiff would now be liable to pay as costs the fees accruing thereunder in addition to what she must pay as it is; for by far the better opinion and the weight of authority are that the service of subpoena upon a witness is not a prerequisite to his right to fees from the party in whose behalf he in good faith attends the court, nor to the consequent liability of the losing party for the costs of such fees when paid by his adversary. U. S. v. Sanborn, 28 Fed. Rep. 299; Cahn v. Monroe, 29 Fed. Rep. 675;
The first question here, then, is one of fact as to the residence of these witnesses. They know where they reside, and have sworn to the facts before the clerk, and upon, their oaths have proven the number of miles traveled by them respectively from their places of residence in Missouri to Memphis, Tena, where the court is held in which the case was tried. Opposed to this is the affidavit of plaintiff that “she is informed and believes” that the witness Cocker is “a resident and citizen of the county of Bhelby, and city of Memphis, and that he made his. home in Memphis,” running as a Pullman car porter between here and Springfield, Mo., and did not come to Memphis as a witness to testify on the trial, but, being here, simply remained at defendant’s request. Counsel for defendant makes oath in this regard that said witness “made his home and headquarters at Kansas City, Mo.,” and “that Ms attendance was procured at Memphis upon application to the superintendent of the Pullman Palace Car1 Company at Kansas City; and that said Cocker was sent here from Kansas City to Memphis for the purpose of testifying.” The inevitable conclusion from this proof, therefore, is that Cocker’s residence was Kansas City, as he himself swore, and plaintiff’s information and belief cannot, of course, avail against Ms oath, nor against the positive affidavit of the defendant’s counsel as to the manner in which his attendance as a witness was procured. The only evidence here as to the “place of residence” of the other three witnesses is the oath of each to the fact before the clerk. But plaintiff makes affidavit that they “are and were all employes of defendant, and run as train jnen on defendant’s railroad from and to Memphis, Tenn., from and to Springfield and Kansas City, Mo.,” and “supposes they were requested by defendant’s solicitor to attend, and, coining to Memphis on their regular duty as trainmen on defendant’s road, remained voluntarily over the days of trial to attend the court at the request or command of their employer or defendant’s solicitor.” The affidavit filed for defendant says “that the witness Caudle was not at that time an employe of the defendant,” but admits that Bowers and Sulk van were its employes. Whether any of the witnesses were in the employ of either plaintiff or defendant is wholly immaterial They have claimed their fees here under the statute, and substantiated their claims by tbeir respective oatbs. What plaintiff “supposes” cannot avail her, without more, and therefore the conclusion ⅛ that the place of residence of these three witnesses is as they have respectively sworn.
“If a witness whose residence is not at the place of holding court is summoned there, he is allowed mileage for returning to his home, but not for*283 coming to the court; and, by a liberal construction of the statute, return travel lias been allowed even beyond the limits of the district for which the court is held.”
In 1869, Judge Witliey lield in Michigan that a witness going voluntarily to a court in tliat state from Ms home in Yew York was "entitled to the per diem of $1.50 and traveling fees from his place of residence and for returning, provided he actually traveled so far to reach the court,” (Anderson v. Moe, 1 Abb. [U. S.] 299;) while Judge Brown, in the same state, as late as 1888, in the case of The Vernon, 36 Fed. Rep. 113, 115-117, in an exhaustive opinion, reviewing all the cases, ruled that the mileage fees of a nonresident witness could only he taxed as costs to the extent of 100 miles from the place of holding court.
As between the witness and the party at whose instance he attends the court, there is no doubt whatever as to the amount he should receive or could recover iu a suit therefor. In case of a contract, it would, of course, he the amount agreed, upon, and, in the absence of any contract, a quantum meruit, or reasonable sum for loss of time and necessary expenses. And in Spaulding v. Tucker, 2 Sawy. 50, Judge Sawyer, in ascertaining such sum, says:
“There being no special circumstances shown to call for a different measure, I know of no better mode of arriving at what is reasonable than to adopt the amount fixed by the act of congress as the compensation allowed witnesses who attend npon compulsory process.”
And this amount, when ascertained, would be the measure of a recovery of costs in favor of the other party according to tee weight of authority.
While it is true that in the courts of the United States, in cases at law, tee oral testimony of witnesses has been the preferred and favored method of proof since the first judiciary act of 1789, and that section 861, Eev. St, taken therefrom, provides teat “tee mode of proof in tee trial of actions at common law shall be by oral testimony and examination of witnesses in open court, except as hereinafter provided,” yet tee same original act prescribed a method whereby “the testimony of any witness may be taken in any civil cause pending in a district or circuit court by deposition de bene esse when tee witness lives at a greater distance from tee place of trial than one hundred miles,” etc. Rev. Bt. § 863. The undoubted object of this provision, or certainly one of its principal objects, was to reduce the expenses of litigation, and .enable parties to obtain in a, comparatively inexpensive mode tee testimony of witnesses residing at great distances from the place of trial, and often the necessary expense of procuring their attendance in court would be an absolute denial of justice because of the inability of parties to incur such expense, and perhaps the ruin of unsuccessful litigants in answering judgments for enormous costs, where the other side was able to incur the expenditure.
Without reviewing tee cases on this subject, and notwithstanding the practice which has obtained in the courts of this district, and which has Mtherto been practically unchallenged, 0and in view of the later cases in this and nearly all the other circuits except tee first, 1 am inclined to hold, though with some hesitation, teat