35 P. 704 | Idaho | 1894
This is an appeal from an order of the trial judge taxing costs. The plaintiff filed his memorandum of costs, duly verified by his attorney, whereby it was shown that his total necessary costs and disbursements amounted to $356.80. Thereafter the defendant (who is the appellant here) moved to tax said costs. Said motion was heard by the judge, and said costs reduced from $356.80 to $249. From said order taxing costs, this appeal is taken.
The following is an itemized memorandum of the costs as allowed by said order:
Elisor’s fees.................................$ 14 40
Clerk’s fees, including stenographer’s fees........ 1510 Witness fees:
Mrs. Caroline Griffith ....................... 9 25
Mrs. Ella Griffith ........................... 9 25
Mrs. C. Haile.............................. 9 25
Herman Vorberg........................... 9 25
Roy White................................. 9 25
J. O. Swift................................ 9 25
W. H. Watt................................ 9 25
L. Price.................................. 9 25
J. S. Whitton.............................. 9 25
W. T. Riley................................ 9 25
C. Haile.................................. 9 25
C. J. Selwyn............................... 9 25
*78 B. M. Mallory. - 9 25
Larry Farrell.. . 9 25
Henry Warn ing. 9 25
J. H. Beane.... 9 25
Charles Berkin.., 9 25-
George Romaine. 9 25
E. Daft........ 6 25
G. Richardson.. '9 25
C. S. Smith...... 18 75
G. A. Sawyer.. 18 75
Total..........................'.......$249 00
Every item of said cost-bill is challenged. The record purports to contain all of the evidence considered on the hearing of the motion to tax costs, and the only evidence contained in the record is the memorandum of costs, with the verification thereto attached, and the affidavit of the appellant. Section 4912 of the Revised Statutes provides that the successful party may present a memorandum of the items of his costs and necessary disbursements, and that such memorandum must be verified by the oath of the party, or his attorney or agent, or by the clerk of the attorney, stating that, to the best of his knowledge and belief, the items contained in said memorandum are correct, and that the disbursements have been necessarily incurred in the action or proceeding. It further provides that a party dissatisfied with the costs claimed may, within three days after the filing of the bill of costs, file a motion to have the costs taxed by the court in which the judgment was rendered, or by the judge thereof at chambers. The statute does not prescribe the procedure in the hearing of a motion to tax costs, but the hearing is usually had upon such pertinent evidence, by affidavit or otherwise, as either party may offer as to the allowance or dis-allowance of the items objected to. It appears from the record that this motion was heard upon the memorandum of costs filed by respondent and the affidavit of appellant. Appellant contends that the affidavit attached to the memorandum of costs is made on “the best knowledge and belief of affiant” that the items therein are correct, and that the disbursements have been necessarily incurred, and that, as said affidavit is met by the
A proper disposition of this case will require an examination of the items of said cost-bill.
The appellant objects to the allowance of elisor’s fees on the ground that said fees are not chargeable under any law, and on the further ground that the elisor informed the defendant that he wished no pay for the services rendered. The first ground of objection is not well taken. An elisor appointed to execute
The appellant objects to the allowance of per diem compensation and mileage to the mother and wife of the plaintiff, but admits that they were in actual attendance three days. Section 6139 of the Revised Statutes of 1887 provides that witnesses in civil actions are entitled to receive three dollars for each day’s actual attendance, and twenty-five cents per mile one way. No exception is made because a witness may happen to be a wife or mother of the party calling them.
Objection is made to the claim of per diem compensation and mileage for the witnesses Mrs. C. Haile and Roy White because they were constantly within reach of the court, and only testified a few minutes. It appears that said witnesses were in actual attendance three days. They are entitled to the per diem compensation and mileage allowed. It is not to be presumed that the business of the court will be delayed by having to send out for witnesses.
It is shown by the affidavit of the appellant that witnesses W. H. Watt, J. S. Whitton, C. Haile, Larry Farrell, Henry Warning, Charles Berkin and George Romaine were not sworn, and did not testify. The fact that said witnesses did not testify'in said case would indicate that they were not necessary witnesses, especially when the record shows that, “all issues were tendered and made up on the second day of December, 1892, were never
The affidavit of appellant states that witness J. O. Swift was present but one day. Per diem compensation and mileage should have been taxed for the attendance of that witness for but one day and one mile.
' The affidavit of appellant shows that witness Eiley informed him that he had stated to respondent that he made no charge for witness fees. That being true, the charge for three days and one mile for said witness should not have been allowed.
In the same manner it is shown that witness C. J. Selwyn was in actual attendance on the trial but one day. The allowance for said witness should have been reduced to three dollars and twenty-five cents. The same facts are shown as to witnesses E. Daft and George Eiehardson, and the allowance for their services should be reduced to'three dollars and twenty-five cents each. The affidavit of appellant shows that witnesses C. S. Smith and G. A. Sawyer were in actual attendance but three days, and traveled but three miles. Said witnesses are only entitled to per diem compensation for the number of days in actual daily attendance. The winning party cannot charge in his cost-bill more for such witnesses than they are entitled to under the provisions of the statute providing for their compensation.
When an item of a cost-bill is denied by the affidavit of the party against whom such fees are claimed, the burden is then on the claimant to produce further proof. If the judge who tried the case has actual knowledge of certain facts that he takes into consideration in the decision of such motion, and an appeal is taken therefrom, the record should show such facts, so that this court may have such facts before it, with other evi
The following items of costs are allowed in this case:
Clerk’s fees .................................$15.10
Witness fees:
Mrs. Caroline Griffith.......................... 9 25
Mrs. Ella Griffith........................... 9.25
Mrs. C. Haile ............................. 9.25
Roy White................................. 9.25
J. O. Swift................................ 3.25
C. J. Selwyn .............................. 3.25
E. Daft.................................. 3.25
Geo. Richardson.............................. 3.25
*83 C. S. Smith...... ;......................... 9.75
G. A. Sawyer.............................. 9.75
Herman Vorburg.......................... 9.25
L. Price.................................. 9.25
B. M. Mallory............................. 9.25
J. H. Beane......................... 9.25
Total................................$121.6a
The order of the judge taxing the costs in this case is modified as set forth in this opinion, and the cause remanded to the district court with instructions to enter judgment in accordance therewith.