19 Or. 85 | Or. | 1890
delivered the opinion of the court
. A proper disposition of this cause requires an examination of the defendant’s objections to the items claimed as •disbursements, and whether such items were properly •taxable. The items of plaintiff’s cost bilLare as follows in -fhe circuit court;»
Clerk’s fees...-.— ÍO O CD
Sheriffs fees... CO O CO
Attorney’s fees.... ÜT O O
Officers’ fees in the trial of said canse in said justice’s court as follows:
Justice's fees_____ r>
Sheriff’s fees-----zo bO
Witness fees as follows in the trial of said cause in said circuit court:
W. F. Boothby, one day, two miles__ bO co
Harry Gibson, one day, two miles.. tO to
Harry Singleton, one day, two miles. bO to
W. H. Byrd, one day, two miles.. bO bo
Witness fees in trial of said cause in said justice’s court for Salem precinct as follows;
W. H. Byrd, one day, two miles... r] -a
Henry Rogers, one day, two miles__ rl
W. F. Boothby, one day, two miles-H <r
Harry Gibson, one day, two miles... rl ki
Total.....§75 65
The defendant objected to the allowance of plaintiff’s claim for mileage and attendance of witnesses in circuit court as follows: Harry Gibson, one day, two miles, §2.20; Harry Singleton, .one day, two miles, §2.20; W. H. Byrd, one day, two miles, §2,20; because said Gibson and Singleton and Byrd were not necessary or material witnesses in said action, and as to said Byrd and Singleton, for the further reason that they were not sworn as witnesses in said circuit court. The defendant also objected to the allowance of plaintiff’s claim for mileage and attendance of witnesses on justice’s court as follows: W. H. Byrd, one day, two miles, §1.70; Henry Rogers, one day, two miles, §1,70; Harry Gibson, one day, two miles, §1.70, because said Byrd, Gibson and Rogers were not necessary or material witnesses in said action, and as to said Rogers,
The plaintiff essayed to meet defendant’s objections to the claim for the witness Rogers by the following' statement in his amended verified statements: “Plaintiff alleges that the witness, Rogers, was necessary and material in the trial of said cause in the justice’s court, for the reason that the defendant, by his answer, raised the issue as to whether or not said plaintiff performed the work sued for by plaintiff, and said Rogers was a material witness to show that plaintiff did superintend said work and labor on said drug store building, but he was not sworn for the reason that defendant, on the trial of said cause in said justice’s court, admitted that plaintiff did said work and labor as alleged.”
Opposed to the defendant’s objections to the other witness fees, both in j astice’s and circuit courts, the amended verified statement of plaintiff contains the following: 1 ‘ The witnesses W. H. Byrd and Harry Gibson were necessary and material witnesses on the trial of said cause in said justice’s court for the reason that the defendant made the defense therein in such trial, that the account sued for by plaintiff was assumed by said' Harry Gibson and Harry Singleton, and that plaintiff was to look to them for his money; that this defense by defendant rendered it absolutely necessary to call said Harry Gibson and W. H. Byrd to dispute the same, which they did in said justice’s court. That Harry Gibson, Harry Singleton, and W. H. Byrd were necessary and material in the trial of said cause on appeal in the said circuit court, for the reason it was necessary to have such witnesses subpoenaed on the trial of said cause in said circuit court; and plaintiff paid said witnesses their fees in advance by the said sheriff; that the defendant never notified plaintiff that he would abandon said defense relied on in said justice’s court; that said witnesses were not sworn for the reason that defendant abandoned such defense in the circuit court, and said plaintiff had every reason to believe that defendant would
The clerk of the circuit court overruled defendant’s objections to the various witness fees, not because the witnesses were shown to be material in the prosecution of the action, but because, as he puts it in his allowance, “they were regularly subpoenaed and paid for their attendance. ” The sheriff charged $19.80 for his fees in the circuit court and the defendant objected to the entire amount except the following items:
Serving notice of appeal....$ 25
Making and delivering copy of notice of appeal. 40
Mileage, serving notice of appeal, two miles. 20
Serving subpoena on W. F. Boothby.. 25
Making and delivering copy of subpoena. 10
Mileage, serving same two miles... 20
Amount...__$1 40
The sheriff charged $6.25 for his fees in justice’s court, and defendant objected to . all of that sum except the following, which are taken from the schedule of constable’s fees established by law, as the service could have been performed by a constable and is paid for by constable’s fees:
Serving justice’s summons...§ 50
Mileage on same, two miles. — . 20
Attending court_ 50
Serving subpoena on W. F. Boothby__ 50
Mileage on same..... 20
Amount_,_$1 90
The following are the charges of the sheriff for services in the justice’s court which are claimed to be illegal for the reason that the schedule of constable’s fees makes no allowance for the same:
Making copy of summons___$ 20
Serving copy of complaint__ 50
Five charges for certificate and return_1 '25
Four charges for copying subpoena__ 80
Making copy of notice of appeal.... 30
Serving same........__ 50
Mileage on same..__ 20
Return on same.... 10
The following are excessive and unnecessary:
Excessive mileage on service of summons_ 40
Serving three subpoenas (immaterial witnesses).... 1 50 Mileage on same___.'.... 60
Total overcharge in justice’s court..$6 35
It is claimed by the appellant that the following are the only items for services by the sheriff in the circuit court properly taxable:
Serving notice of appeal____. $ 25
Making and delivering copy of notice of appeal, four folios at ten cents...... 40
Mileage serving same, two miles.. 20
Serving subpoena on W. F. Boothby_ 25
Making and delivering one copy of same, one folio. _ 10
Mileage on same, two miles... 20
Total.40
Four returns on subpoenas___§ 40
Mileage to pay fees advanced___ 60
The following are excessive and unnecessary:
Excessive charges copying one subpoena_ 10
Excessive mileage serving one subpoena-- 20
Serving three unnecessary subpoenas .. 75
Copying same..... 60
Mileage on same___1 20
Total overcharge in circuit court...$3 85
These several charges will now be separately examined— first, as to the claim for witness fees paid Henry Rogers. I think the answer presented an issue as to whether or not the plaintiff performed the work and labor mentioned in the complaint, and the plaintiff had the right to subpoena witnesses to support his allegations, and that in such case, if the defendant upon the trial conceded that the plaintiff did the work, thereby rendering it unnecessary to call witnesses to prove it, he may still charge for the attendance of such witnesses. The allowance for Henry Rogers’ attendance in the justice’s and circuit courts is affirmed.
2. Henry Gibson and W. H. Byrd attended as witnesses in the justice’s court and were not sworn, and the plaintiff seeks to recover for their attendance. If a witness attend upon the trial of a cause and is not sworn, the party causing him to be present cannot recover from the adverse party the expense incurred for such witness, unless some sufficient reason exists which would legally excuse his failure to testify. In other words, it must be made to appear that his attendance was necessary at the time, but that by reason of some unforeseen or other sufficient cause it become unnecessary for such- party to cause such witness to be sworn. The plaintiff has assumed this to be the law and has endeavored to give a reason why these wit--
3. Harry Gibson, Harry Singleton andW. H. Byrd also, attended as witnesses in the circuit court, but they were not sworn, and the reason given for their attendance in the amended verified statement is wholly insufficient, and the claim for their per diem and mileage for attendance in that court must be disallowed for the same reasons stated respecting Byrd and Gibson.
4. The next objection is to the charge made for fees paid to the sheriff for services in said cause rendered in the circuit court amounting to $19.80. The defendant concedes he is entitled to $1.40 and no more. It was held by this court in Jackson v. Siglin, 10 Or. 93, that the statutes which give costs are to be construed strictly, and that the rule is inflexible that an officer can demand only such fees as the law has fixed and authorized for the performance of official duties. And on every occasion where the question has been presented to this court, charges for constructive services have been constantly disallowed, and it would seem too plain for argument that an officer can make no eharge for any act performed by him by virtue of his office unless the legislature has by some statute authorized such charge. The sheriff’s claim is itemized, and inasmuch as the items occur in chronological order, it will be most
Making copy of summons.§ 20
Serving copy of complaint..____ 50
Certificate and return.... 20
Making copy of subpoena._____ 20
Certificate and return...... 20
There are three other copies of subpoenas with a certificate and return, for each amounting to_1 20
Making copy of notice of appeal.. 30
.Return....... 10
Serving subpoena on Gibson and Byrd, 50 cents each 1 00
Total..._$3 90
To which must be added per diem claimed for Gibson and Byrd and disallowed___ 3 40
Total disallowed in justice’s court..¶>7 30
When the sheriff consents to act as constable and to discharge duties which a constable is authorized to perform, he can charge no other or different fees than are allowed by law to a constable for the same services; and if as sheriff he may charge for making copies pertaining to service of papers in courts of record, he cannot do it in justices’ courts.
Four returns by sheriff, 10 cents each_$ 40
Mileage to pay fees advanced_ 60
Henry Gibson_ 2 20
Harry Singleton.. 2 20
Dr. Byrd_'.... 2 20
Serving three unnecessary subpoenas_ 75
Copying same_ 60
Mileage on same_ 1 20
Total overcharge in circuit court.§10 15
Add amount disallowed in justice’s court. 7 80
Total....:..§17 45
This amount must be deducted from §57.62, the amount allowed the respondent in the court below, leaving the amount of costs and disbursements which the plaintiff is entitled to recover §40.17. The defendant objected in the court below to the amount of fees claimed by the clerk, and pointed out the several items which he claimed were taxable and that none others were proper; but he did not argue his objections here, and we therefore express no opinion in relation to the same.
The judgment of the court below is modified in the particulars above specified, and in all other respects it is affirmed.