7 Mont. 464 | Mont. | 1888
This is an action brought to recover $117.80, witness fees, claimed by one Joseph Sheldon, for attendance as a witness for the defendant in the case of Territory of Montana against Maurice Sullivan, tried in the county of Yellowstone on change of venue from the county of Custer, on the 25th of November, 1885. Plaintiff claims to be the owner of said account by purchase from Sheldon. There was a demurrer to the complaint, which was sustained, and the plaintiff chose to abide its amended complaint, and not to further amend. The case is here upon the j udgment roll. It is averred in the demurrer that said complaint does not state facts sufficient to constitute a cause of action. The following extracts from the complaint are sufficient to present the questions for our determination, to wit: “ 3. That at a regular term of the district court in and for said county of Yellowstone, holden on the twenty-third day of November, 1885, a criminal action was then and there pending in said court, wherein the territory of Montana was plaintiff and Maurice Sullivan defendant; that said action had been removed to said county of Yellowstone for trial on a change of venue from the county of Custer; 4. That one Joseph Sheldon was a material witness for the defendant in the trial of said cause; that a subpoena was duly issued and served upon said Joseph Sheldon, requiring him to attend said court as a witness; that he obeyed said subpoena, and did attend said court to testify in said action at the instance of said defendant therein at the time and place named in said subpoena; 5. That the defendant, Maurice Sullivan, was tried and acquitted of the offense charged
1. Section 410, page 479, Compiled Statutes, provides: “ In case the defendant shall be acquitted, or in case he shall be convicted, the executions shall issue against him for the costs, and shall be returned unsatisfied, in whole or in part; the costs remaining unpaid shall be paid by the county in which the offense was committed; and in case the conviction or acquittal shall be in a county other than that in which the offense was committed, it shall be the duty of the judge before whom the trial was had, and the district attorney prosecuting such defendant, to certify under their hand, authenticated by the seal of the court, the amount of such costs; and it shall be the duty of the board of county commissioners of the county in which such offense was committed to audit and allow the amount of such costs, and issue an order therefor upon the county treasurer of such county.” It will be seen that the complaint simply alleges in sub
2. Section 153 of the Criminal Practice Act provides that “ no indictment for any trespass against the person or property of another, not amounting to a felony, or for the first offense of petit larceny, shall be preferred unless the name of the prosecutor is indorsed thereon, except when the same is preferred upon the information or knowledge of two or more grand jurors, or on the information of some public officer in the necessary discharge of his duty, in which case a statement of the fact shall be made at the end of the indictment, and signed by the foreman of the grand jury.” Section 413 of the Criminal Practice Act provides that “ if upon the trial of an indictment whereon the name of the prosecutor is indorsed as such, according to law, the jury shall acquit the defendant, they shall determine and return, together with their verdict, whether the prosecutor or the county shall pay the costs, and the court shall render judgment accordingly.” The complaint does not show for what offense Sullivan was indicted, whether it was a felony or misdemeanor. If it was a misdemeanor
3. Section 423 of the Criminal Practice Act provides that “witnesses in criminal cases shall make out a bill, under oath, of the fees to which they are entitled in each case, and file the same with the clerk of the district court.” Under this section, it was the duty of the witness to make out a bill of bis fees, itemizing it, specifying what part was for mileage, and what part for attendance, the number of miles traveled, and the number of days he was in attendance, so as to make out an itemized bill of costs. It does not appear from the complaint that this was done.
4. Section 762 of the General Laws provides that “ no
5. Section 764 of the General Laws provides that “whenever a claim of any person against a county shall be disallowed, in whole or in part, or when any taxpayer of the county shall feel aggrieved by any allowance made by the board as excessive, unjust to the county, or illegal, such person may appeal from the decision of such board to the district court of said county, by causing a written notice of appeal to be served upon the clerk of such board within thirty days after the making of such decision or allowance, and executing a bond to such county, with surety to be approved by the clerk of such board, conditioned to prosecute such appeal to effect, and to pay all costs that shall be adjudged against the appellant.” It will be seen from this statute that the plaintiff could have appealed directly to the district court from the county board in disallowing his claim; but we do not decide that he may not bring his action at law, notwithstanding this statutory right of appeal.
For the foregoing reasons, we hold that the complaint
Judgment affirmed.