196 F. 255 | D.N.M. | 1912
The question for decision arises upon the taxation of costs, and is whether mileage for more than 100 miles is allowable for witnesses residing without the district and more than 100 miles from the place where court is held. This question must be answered in the negative. While there is some conflict of authority, due largely to the holdings in the First Circuit, which latter •follow certain early expressions from Judge Story, the weight of authority is to the effect that mileage is not taxable under such circumstances for a distance greater than 100 miles from the place of trial. The case of Hanchett v. Humphrey (C. C.) 93 Fed. 895, in my judgment correctly declares the law, where it says:
“The true rule upon this subject, as gleaned from all the authorities, is substantially to the effect that the acts of Congress were intended to, and do, allow mileage to witnesses to the full extent of the distance that could be legally reached by subpoena, to wit, at any place within the district or at any point without the district to the extent of 100 miles from the place where the court is held.”
The only modification of this general rule is in such exceptional cases as are hinted at by Judge Shiras in Smith v. Chicago Company (C. C.) 38 Fed. 326, and by Judge Brown in The Vernon (D. C.) 36 Fed. 113, 117.
The propriety of this conclusion is established by the following authorities : Rev. St. U. S., § 876 (U. S. Comp. St. 1901, p. 667); Griggsby Construction Company v. Railroad Co. (C. C.) 123 Fed. 751; Eastman v. Sherry (C. C.) 37 Fed. 844; The Vernon (D. C.) 36 Fed. 113; The Syracuse (C. C.) 36 Fed. 830; Burrow v. K. C. Company (C. C.) 54 Fed. 278; Pinson v. A. T. & S. F. Company (C. C.) 54 Fed. 464; Buffalo Ins. Co. v. Providence Co. (C. C.) 29 Fed. 237; Haines v. McLaughlin (C. C.) 29 Fed. 70; Smith v. Chicago Ry. Co. (C. C.) 38 Fed. 321, and other cases collated in 7 Fed. St. Ann. 1124. The costs will be taxed in accordance herewith.
