65 P. 1062 | Or. | 1901
delivered the opinion.
On April 6, 1899, the defendants recovered judgment for their costs and disbursements in an action brought against them by the plaintiffs in the circuit court for Multnomah County. Within five days thereafter they filed a cost bill, containing, among other items, a claim for mileage of George F. Porter, who attended as a witness by special order of the court, traveling from Baker City to Portland and return, seven hundred and fourteen miles, at twenty cents a mile, amounting to $142.80. Objections being made to the allowance of this item, an amended verified statement was filed by the defendants. The clerk thereupon decided that they were entitled to recover only single mileage for this witness, and on a motion to retax the costs, his decision was affirmed by the circuit court. It appears from the cost bill, the amended verified statement, and the findings of fact that the action brought by plaintiffs against defendants was to recover $2,000, which they paid for certain property in Baker
The principal question on this appeal is whether a witness residing within the state, but without the county, and more than twenty miles from the place of trial, is entitled to double mileage, when required by an order of the court to attend for oral examination. Preliminary to the consideration of this question, however, it is necessary to dispose of some other objections to the claim.
In the early and leading case of Crawford v. Abraham, 2 Or. 163, it is said : “ Mileage will be allowed, of course, to witnesses residing beyond the reading of an ordinary subpoena within the state, unless objection is made thereto, in which case a showing must be made to sustain that item, equivalent to that which is necessary under section 785 [now 795] of the Code, to procure a special subpoena. It would certainly be better for a party to pay such single mileage for a witness, than to force a party to procure a special subpoena, and thereby incur, under section 785, the liability to pay double mileage and attendance.” Again, in Sargent v. Umatilla County, 13 Or. 442 (11 Pac. 225), it was assumed by counsel and the court that in a civil case a witness residing outside of the county, and more than twenty miles from the place of trial, who attended in obedience to an order of the court, was entitled to double mileage ; the point controverted being whether the same rule applied to a witness in a criminal case. The court thus states the proposition : “ The appellant’s counsel contends that witnesses,