18 Nev. 230 | Nev. | 1884
Lead Opinion
By the Court,
As we construe the statute governing .the allowance of witness fees in civil actions, it is only necessary, upon the facts presented, to decide whether or not such fees, for mileage or attendance, of the opposite party’s witnesses, can be taxed, and judgment therefor entered against the losing party, when such witnesses have not' been subpoenaed in the case according to law, or sworn or examined, although present in court at the request of the successful party. The question whether such witnesses could compel the party requesting their attendance to pay them reasonable compensation therefor, is not in the ease. The allowance of witness fees is governed entirely by the statute. No amount beyond what is there stated can be taxed, in any event, for any witness; nor can that be, if only a certain class of witnesses are allowed fees, without showing that such witness belongs to that class. The statute provides as follows: “Witnesses required to attend in any of the courts of this state shall be entitled to the following fees : * * * Witness fees in civil cases shall be taxed as disbursement costs against the defeated party. * * *” (Comp. Laws, 2742 ) It is plain from the foregoing that witness fees which may be taxed, mentioned in the last part of the section, are the same as those stated in the first part, which witnesses shall be entitled to receive ; also, that such fees are limited to witnesses who have been required to attend. When is a witness required to attend before a
The present fee bill was passed in 1865. The prior one (St. 1861, p. 250, sec. 8) provided that witnesses in civil .cases should have two dollars a day for attendiny before auy court, etc., and twenty cents a mile for traveling to the place of trial. At that time, and at the date of the passage of the present fee bill, the statute in relation to the manner of compelling the attendance of witnesses was the same, in substance, as now. (Stat. 1861, pp. 374, 375; Stat. 1864; Comp. Laws, 1449, 1450.) It provided that “a subpoena may require not only the attendance of the person to whom it is directed, but may also require him to bring, with him any books,” etc. No person shall be required, to attend as a witness before any court * * * out of the county in which he resides, unless the distance be less than-miles from his place of residence to the county trial. * * * The subpoena shall be issued as follows: To require attendance before a court. * * * To require attendance out of court, before a judge, referee, * * * before whom the attendance is required. * * * To require attendance before a commissioner appointed to take testimony. * * * ”
At the date of the passage of the present fee bill, as now, there was no other method of requiring or compelling attendance of witnesses in a statutory sense than by subpoena. It is plain that the word “require,” then and now used in the statute, meant and means the saiue as ££ compel. ’ ’ The legislature did xxot intend to say that no person should be “requested” to appear before axxy court out of his county, unless the distance was less than a certaixi number of miles from his place of residence to the county of trial. Webster defines “requix’e” as meaning “to demand; to ask as of right and by authority. We require a person to do a thing and we require a thing to be done. ’ ’ He also says it is rarely used in the sense of “ asking as a favor. ” It is our opinion that when the legislature in 1865 changed the
Dissenting Opinion
dissenting :
In my opinion witnesses who attend court at the request of a party without the service of a subpoena are entitled, under the statute, to fees and mileage for attendance. It is claimed that the words ‘ ‘ required to attend ’ ’ (2 Comp. Laws, 2742) confine the allowance of fees to witnesses who are required to attend court by virtue of legal process. In support of this view the decisions of the federal courts, which hold that “ pursuant to law ’ ’ means upon service of process, are cited. The statute of this state does not, however, confine the payment of fees to witnesses who are required to • attend court pursuant to law, unless this construction necessarily follows from the use of the word “required.” It is true that this word is more frequently used as asserting a right, or as a positive demand, “to claim as by right and authority ;” but it is also defined as meaning, “to ask as a favor; to request.” (Webst. Diet.) We gain but little light in searching for the definition of this word. It has been held in one case that the words “request” and “require,” although derived from a common source, may, and often do, have a meaning radically different (Johnson v. Clem, 27 Alb. Law J. 444) and in another case it is said that these words have the same origin. “ Usage has given to them somewhat different meanings, which, however, are
I think it was the intention of the legislature that witnesses should be paid, for their dttenclance at court without reference to the means employed in procuring their attendance. Witnesses may be required to attend court by agreement, or by the request of a party, without the service of a subpoena; and if they do so attend, they can, in my opinion, collect their fees for mileage and attendance from the party at whose request they were “required to attend.” The fees thus paid would, it seems to me, be a necessary disbursement in the action which could, under the provisions of the statute, “be taxed as disbursement costs against the defeated party.”
It is true, as was said by the supreme court of Oregon, “that the statutory means of compelling the attendance of witnesses is by subpoena duly served ; but we are at a loss to see how any party cau be injured in having to pay mileage and attendance merely for the witnesses of an adversary who attends upon request or agreement, when the additional expense of officers’ fees and mileage for issuing and serving of a subpoena, swelling largely the claim for disbursements, could do no more than procure the attendance of the witness.” (Crawford v. Abraham, 2 Or. 166.)
Substantially the same views have been repeatedly expressed by the supreme and superior courts of New York; “Witnesses are entitled to their fees from the party at whose instance they attend, whether they are subpoenaed or not. The non-service of a subpoena would be no defense for the party when sued by a witness for his fees, who had attended as his witness at his request. Nor is it possible to perceive how the want of a subpoena cau relieve the unsuccessful party from the payment of the fees of his adversary’s witnesses.” (Wheeler v. Lozee, 12 How. Pr. 448; Vence v. Speir, 18 How. Pr. 168.) “The fee bill gives compensation to witnesses for daily attendance upon court; it does not say anything about attendance in obecli
I also think that witnesses who attend court in two or more cases, are entitled to fees for mileage and attendance in each case. (Flores v. Thorn, 8 Tex. 382; Robison v. Banks, 17 Ga. 215; McHugh v. Chicago & N. W. R. Co., 41 Wis. 81; Willink v. Reckle, 19 Wend. 82; Hicks v. Brennan, 10 Abb. Pr. 305; Vence v. Speir, 18 How. Pr. 168.)
I am, therefore, of opinion that the judgment of the district court should be affirmed.
