Senneka v. Bickle

*346 Stone, Justice. This appeal by defendant from the judgment for plaintiff brings np for review only the allowance of expert witness fees to certain members of the bar who testified on plaintiff’s behalf at the trial. Plaintiff, an attorney, sued defendant for $470 for services rendered. As to the amount due, a jury agreed with plaintiff after a rather prolonged trial. Testifying for plaintiff as to the reasonable value of his services were Messrs. Cushing of Hancock, Conklin of Sauk Center, and Zima and Seines of Glenwood, all members of the bar. The two latter were allowed fees of $10 a day. Neither of them was required to absent himself long from his own office in order to testify. But Messrs. Cushing and Conklin had to travel each of them upwards of 25 miles each way. Each one’s presence in court as a witness in Glenwood meant absence from the office at Hancock or Sauk Center for all of the day. The only statutory rule is that the judge of any court of record may allow such expert witness fees as in his judgment may be just and reasonable. 2 Mason Minn. St. 1927, § 7009. So we should not disturb such an allowance unless abuse of discretion is apparent. The record would speak for itself in plainer fashion if there were an affirmative finding of “special circumstances” as contemplated by District Court Rule No. 11. See Bekkemo v. Erickson, 186 Minn. 108, 242 N. W. 617. The district court rules are often relaxed by the district judges. Seldom, if ever, are they the law of our decision. Even if there were an inexorable demand for evidence of “special circumstances,” this record utters it. The days spent by Messrs. Cushing and Conklin in attendance as witnesses at Glen-wood were full days. Nothing was left of them to be devoted to the office work at home in Hancock or Sauk Center. That circumstance explains why the out-of-town witnesses were allowed substantially more than those of Glenwood. The foregoing leads to the conclusion that the judgment under review must be affirmed. But, in view of the disproportion already existing between the amount of plaintiff’s demand and the trimmings already added by way of costs and disbursements, the respondent will not be allowed statutory costs in this court. So ordered.