Grinnell v. Denison

By the Court, Paine, J. Since this appeal was taken, tbe defendant Wm. Denison has died. No steps have been taken to make bis administrator a party to tbe suit, and it was suggested that no administrator bad been appointed. Sec. 4, cbap. 135, R. S., 1058, provides that on tbe death of any of several defendants or plaintiffs, where tbe cause of action survives, it shall be prosecuted by tbe surviving plaintiffs or against tbe .surviving defendants, as tbe case may be. We shall not attempt to determine what effect should be given to tbis section, as there was no argument upon tbe question, and no appearance here by any of tbe defendants. Tbe only question presented on tbe appeal is, as to tbe right of parties who swear in their own bebalf under tbe statute, to tax their fees as witnesses in their own favor. And we think they have not such right. Tbe statute allowing parties'so to swear, makes a radical change in tbe law in that respect, and however beneficial it may be in tbe provisions which it makes, yet we do not think any effect should be given to it beyond what its provisions require. It does not provide that parties swearing in their own bebalf may tax fees for themselves as witnesses. And it is obvious that there is a clear distinction between them and other witnesses in tbis respect. For where tbe party is obliged to procure tbe attendance of another witness, tbe law presumes that be has to pay him tbe legal fees, as be cannot compel bis attendance without. But tbe party generally attends at tbe trial of bis own case for other purposes besides that of being a witness. And although tbe law has allowed him to swear in bis own bebalf, that does not indicate an intention on tbe part of tbe legislature to place him on tbe same footing with [404] an ordinary witness in all respects, and allow Mm to tax Ms mileage and per diem for traveling to, and attending upon, the trial of Ms own case. If tMs right were allowed, we think, without some statutory provisions regulating it more perfectly, it would be liable to frequent abuse. We are therefore of the opinion that the clerk was right in rejecting those items, and that the circuit court erred in allowing them. Eor these reasons, the order appealed from is reversed, with costs, and the cause remanded, though we make no decision as to the effect of this judgment upon the rights of the representatives of the deceased defendant.