185 Iowa 1219 | Iowa | 1919
The executor of the will of Anna Hulme,
deceased, having made final report of his trust, exceptions thereto were taken by the appellee, Alice Keimers, one of the beneficiaries of the estate. At the trial of the issues so raised, the appellee produced a witness, William J. Keimers, Who testified in support of the exceptions taken to the executor’s report. This witness was a resident of the state of Idaho, and came from his home to Forest Oity in this state, a distance of 934 miles, without subpoena, but at the request of the appellee, for the purpose of giving testimony upon the hearing. The exceptions to the report were sustained, and the executor ordered to make accounting for property to the amount of $2,000 or more in excess of his original showing. In- assessing the costs, the clerk first taxed to the executor in favor of said witness for 5 days’ attendance and 70 miles’ travel. Thereupon, appellee moved for a retaxation of such portion of the costs, and that the witness be allowed full mileage from his home to the place of trial, instead of 70 miles, as entered by the clerk. This application was sustained, and the mileage was re-assessed on the basis of the entire distance traveled; and the executor appeals.
the case, it follows of necessity, in our judgment, that the 70-mile limit upon the effective force of a subpoena has no effect to limit the authority of the court to allow mileage for a greater distance. In several of our cases, it has been said that the allowance of mileage beyond such limit is largely a matter of discretion in the trial court. See Perry v. Howe Co-op. Cr. Co., 125 Iowa 415, and other cases already cited. In the Perry case, mileage was claimed for travel from another state; but it was allowed from the state line only, and we sustained the ruling. It is possible that cases may he found — though counsel cite none — where we have refused to interfere with the discretion of the trial couyt in allowing mileage from points beyond the state line; but, however that may he, we are disposed to hold the safer rule to be that authority and discretion to allow mileage allowances to witnesses should be limited to their necessary and proper travel within the state. Without such restriction, the costs in a contested case may easily be made unnecessarily burdensome; and if a witness may travel from Idaho at the expense of the losing party, others may also be brought from across the seas in either direction, until their allowance reaches mountainous proportions. Again, mileage, if taxed at all, is allowed as a statutory right, and to grant it for travel of a witness before he reaches the jurisdiction of Iowa is, in a certain sense, to give the statute extra-territorial effect.
We therefore reach the conclusion that the mileage of the witness in the present case should be reduced, and taxed upon the basis of the distance traveled by him from the state