91 Wis. 500 | Wis. | 1895
A fee of $1.50 “for attending in any action or proceeding in a court of record” is provided for each witness who so attends. E. S. sec’ 4067. Sec. 4060 provides that the fees of all witnesses on the part of the state in a criminal action or proceeding shall be paid by the county in which the'offense which is the subject thereof was committed ; and that, when the action is pending in the circuit court, the clerk thereof,- “ upon proof by affidavit of his attendance and travel, shall give each such witness a certificate of the number of days’ attendance, number of miles traveled, -and the amount of compensation due him/’ which certificate is to be paid out Of the county treasury. It is to compel the issuing of such a certificate, upon such an affidavit, that this action is brought.
The remedy by peremptory’ writ of mandamus is given only where the right and duty are clear. State ex rel. Pfister v. Manitowoc, 52 Wis. 423. So, unless it shall clearly appear that the relator in fact attended as a witness in an action in the circuit court, within the intention of the statute, she has ' failed to show that she is entitled to the certificate or to this remedy to compel its issue to her. ■ It seems quite clear that to entitle her either to the' certificate or to this remedy she should establish clearly that she attended in the circuit court ns a witness. It is clear that she was not at any time in fact in the circuit court, that she was not sworn, and did not ¡testify. This seems to show with considerable clearness that :She did not attend as a witness in that court. It cannot be within the contemplation of the statute that the certificate ahust be issued in all cases where the formal proof by affidavit, as mentioned in the statute, shall be presented to the •clerk, regardless of the fact whether the person claiming fees
By the Court.— The judgment of the circuit court is affirmed. - -