9 Haw. 563 | Haw. | 1894
Opinion of the Court, by
The question presented by the exceptions is whether the Circuit Judge erred in taxing against the plaintiff the costs incurred under a commission issued at the instance of the defendant for the examination of certain witnesses in Sydney, New South Wales.
The statute expressly provides that costs of this nature shall be costs in the cause (and therefore follow the judgment which in this case was for the defendant) unless otherwise directed by the judge who orders the issuance of the commission or who tries the case, or by the court in which the action is pending. Oh. XXXII., Sec. 9, Laws of 1876, Comp. Laws, p. 364 This statute, if it does not make the ruling of the trial judge final at least gives him large discretion, with the exercise of which' this Court should not interfere except in a very clear case of error. The question is not one of pure fact as to whether the costs were incurred, or one of pure law as to whether the costs are such as are covered by the statute, but one involving a consideration of what is just and proper under all the circumstances of the case, — with which the trial judge is especially familiar.
The presumption is that the costs should be allowed, and
The mere fact that the testimony was not used i» not of itself sufficient ground for disallowing the costs. A defendant may be justified in procuring depositions and yet because of contingencies which can not be foreseen it may turn out afterwards to be unwise or even impossible to have the depositions read to the jury, as, for instance, if the witnesses themselves are present at the trial. In this instance it is contended by the defendant that the depositions were not used because of an agreement made between the parties after the plaintiff had rested, that defendant should put in only his own testimony and two depositions not in question here and that plaintiff' should put in no rebuttal. The object of the agreement, as we gather from the argument, was to hasten the conclusion of the trial, it being then Saturday, the last day of the term. If the depositions were admissible and were not used merely because of this agreement, the costs certainly should be taxed to the plaintiff, for the defendant could not have known at the time the commission issued what agreement the plaintiff might be willing to make during the progress of the trial. The question is not whether the depositions were in fact used or not, or even whether they might have been used, but rather whether the procuring of them was a justifiable precaution on the part of the defendant in preparing for his defense.
The plaintiff set the proceedings in motion. The action, which was for slander, promised to be vigorously and hotly prosecuted. It was for $10,000 damages. The defendant could not be expected to take risks in the preparation of his defense.
The alleged slanderous words concerned the relations
The exceptions are overruled.