Chalmers v. Melville

By the Court. Woodruff, J. I have no hesitation whatever in saying, that the order appealed from should be affirmed. A party, on whose behalf a witness is summoned to testify, has it in general in his power to issue his subpoena, and give the desired witness the most ample time to make the arrangements necessary to enable him to attend without injury, and usually without inconvenience, to himself; and where he does give the witness reasonable notice, none but the clearest evidence of inability, or such sickness in his family as would create a higher duty to remain at home, should excuse his disobedience. But when the party thinks proper to delay the service of a subpoena to the very day of the trial, he is in no condition to insist upon any such rule. It is as much his duty to give the witness such reasonable time as the case will allow, to the end that his affairs may not be deranged by attendance, as it is the duty of the witness to attend for the benefit of the party. A witness thus unreasonably served with a subpoena will, therefore, be held excusable on comparatively slight grounds, because the party is himself in fault. We do not, by any means, intend to say that the shortness of the notice to the witness is, per se, an excuse, but that a witness so summoned will be excused on much lighter grounds. He is not bound to use the same endeavors to attend as would be his duty if a reasonable time had been given. There may be exigencies in which a longer notice is impracticable, which, being explained to a witness when served with a subpoena, might impose upon him the duty of making great sacrifices in order, if possible, to obey the writ; and no [504] doubt a summons issued on the express order of a judge for a de bene esse examination, (in which the discretion of the judge has been exercised in fixing the time for his attendance, in view of the exigencies of the case,) requires instant diligence on the part of the witness to obey the mandate. But after a voluntary delay of a party until within three or four hours of the time of the trial, the service of a subpoena for an afternoon at the close of the week, in midsummer, ought not to entitle him to attach the witness, unless it was quite convenient for him to attend, and he perversely neglected to do so. Certainly the witness was not hound to alter his whole arrangements and those of his family, and subject himself and them to inconvenience, on a summons so served within an hour of their departure from the city. The cases cited from 2 J. C. 109, 15 Wend. 602, in no wise conflict with these views. The attachment was, therefore, properly refused. Had the witness merely refused to attend, and left the plaintiff’s attorney to believe that such refusal was willful and without just reason, the costs ought not to he allowed to him; but here the witness fully explained the reasons why he could not attend on so short notice, and offered to attend on the Monday following. We think the reasons for his non-attendance were quite sufficient, and ought so to have been regarded by the plaintiff; and he having, with full notice of the excuse, put the witness to the expense of defending a motion for an attachment, the only error, if any, which occurred in the exercise of the judge’s discretion below, was that he did not allow a larger sum as costs. The order must be affirmed, with $10 costs, to be paid by the appellant to the witness. Order appealed from affirmed with costs.