Gause v. Edminston, 35 Tex. 69

Gause v. Edminston

35 Tex. 69 | Tex. | 1872

Walker, J.

The question presented on this record would at first sight appear almost to fall within the maxim de minimis; but upon examination of the questions presented, their importance is greatly augmented.

It is an appeal from the judgment of the District Court of Houston county, on a motion to re-tax the costs in a cause appealed from a justice’s court, and tried in the district court, wherein the parties to this appeal were litigants.

We are asked to put a construction upon the act of May 19, 1871. (Gen. Laws, page 108.) The first section of this act authorizes the parties in interest to testify in civil actions. By section second of the act, certain exceptional cases are stated. A party to an action may volunteer his evidence on his own behalf, in all cases except in actions by or against executors, administrators, or guardians; or he may be called to the stand by the opposite party.

The Legislature has been silent touching the subject of fees, which might or might not be allowed to such witnesses, and there is nothing in the statute itself upon which we would be authorized to place a construction; but we are disposed to some extent to adopt the view *73presented by appellant’s counsel, which regards the statute as but enlarging a remedy long known to the equity jurisdiction of this court, and making it apply to suits at law.

Where the party adopts the mode of filing written interrogatories for his adversary to answer, under oath, although these interrogatories may be regarded as part of the pleadings, yet the party filing the interrogatories makes him who is to answer them his witness; and as such, we are not aware that it has been the practice in any of the courts of the country to allow witness fees. If the party interrogated as a witness is called into court by the opposite party, he is only complying with a necessity which the law has imposed upon him as a litigant; if he volunteer his evidence in his own behalf, he is only availing himself of a privilege which the Legislature has conferred upon him, and we do not think that he should in any case be paid because he has seen proper to exercise this privilege.

It is complained that the court erred in permitting a witness, Mark Miller, to receive fees, upon an affidavit presented to the clerk which does not specify the number of days he was in attendance upon the court, or the number of miles he had traveled in going to and from his place of residence to the court house. The affidavit simply sets out a gross sum, to which the witness swears he is entitled for attendance upon the court. Article 3724, Paschal’s Digest, by which the matter of fees and expenses of witnesses is regulated, does not specify the necessary averments of the affidavit to be made by the witness.

But, upon well settled principles of law, we hold that the affidavit should fully state the facts upon which the witness predicates his claim for fees and expenses. The clerk was but a ministerial officer of the court, yet our *74statute imposes upon Mm a judicial act in determining the sufficiency of the affidavit upon which he issues his certificate. In Crawford v. Crain (19 Texas R., 146), the court say: “The certificate of a clerk of the .attendance of a witness is prima facie evidence, in a suit by the witness against the party at whose instance he was subpoenaed, to recover his fees.” But certainly it cannot be maintained that the court cannot go behind the clerk’s certificate to determine the sufficiency of the affidavit made by the witness. All the acts of the clerk, in any proceedings had before the court, are open to inspection and correction (if necessary) by the judge.

For the reasons stated in this opinion, the judgment of the district court is reversed and the cause remanded, to be proceeded in in accordance with this opinion.

Reversed and remanded.