79 Iowa 326 | Iowa | 1890
I. The single question to be determined is whether the witness J. P. Willis is entitled to mileage for more than one mile; and, if so, whether from his home in Dakota, or from the state line. Code, section 3814 provides a fee for each day’s attendance, and “mileage for actual travel per mile, each way, five cents,” and that, “ in criminal cases, where the defendant is adjudged not guilty, the fees above provided for attending a district court or justice’s court shall be paid by the county upon a certificate of the clerk or justice.” Some such provision is necessary to secure to parties
Applying this view of the law to this case, it would follow that the witness J. P. Willis is not entitled to any mileage. It must be noticed, however, that the court had made an order for a subpcena of defendant’s witnesses, including the said J. P. Willis, and that he had attended at request of defendant’s attorney, without subpcena. The order of the court granting the defendant authority to subpoena witnesses is not in any sense an order or request of the court to such witnesses to attend. It does occur that, after taking such orders, it is ascertained that witnesses named therein are not material, and therefore not subpoenaed. It will not do to say that any witness, knowing himself to be named in such order, may by reason thereof attend and recover the same fees and mileage as if he had been subpoenaed. The request of counsel, based upon the order, was in no sense a command or request from the court.
None of the cases heretofore presented to this court involved the precise question under consideration, and all of them except Westfall v. Madison Co., 62 Iowa, 427, are so entirely different as not to be in point. In Westfall v. Madison Co., the witness was served with subpoena at Pittsburgh, Pennsylvania, to appear, and did appear, as a witness on behalf of the state, and this court held that he was entitled to mileage from Pittsburgh for the reason that, when one person performs services at the request of another, he is entitled to compensation from the latter; that the subpoena was a request from the state for the witness to travel and attend, which request was justified by the fact that the state could not avail itself of the testimony of this witness except by his personal presence. The court says : “ We think public policy, and the due and proper administration of the criminal law, • demand that such should be the rule. * * * To prevent failures of justice, the attendance of witnesses in such cases should,