McHugh v. Chicago & Northwestern Railway Co.

Oole, J. In this case there was an appeal taken to the cir81 cnifc court from the taxation of costs by the clerk. On such retaxation the circuit court made the order from which this appeal is taken, refusing to allow the plaintiff more than one-half of his witness fees. The circuit court held that the plaintiff was not entitled to recover full costs for the travel and attendance of his witnesses, because the same persons had attended as witnesses at the same terms of court in another action brought by a different plaintiff against the same defendant, wherein their fees had been taxed. The counsel for the plaintiff contends, and as we think with good reason, that no deduction for witness fees should be made on that ground. Each plaintiff, he insists, must subpoena witnesses for his own case; must tender them the usual fee for one day’s attendance and for travel, without regard to any other litigant; and unless he does this he cannot enforce the attendance of his witnesses by attachment. These views seem to us cogent. But the language of the statute removes all doubt upon the question. That gives a witness for actually attending in any action or proceeding in a court of record, one dollar for each day, and fees for traveling at the rate of six cents per mile in coming from the residence of the witness to the place where the court is held. Sec. 25, ch. 133, Tay. Stats. But the counsel for the defendant has attempted to construct an argument on other provisions of this chapter in support of the position that the legislature intended, where a witness should attend upon two or more causes in a court of record at the same term, that his fees should be equally apportioned among the parties who might subpoena him. The argument is ingenious, but to our minds inconclusive and unsatisfactory. It is true, in case of the attendance of a witness upon two or more cases on the same day before a justice’s court, the legislature has seen fit to provide that his fees shall be apportioned among the parties who summon him (sec. 40); but this clearly authorizes the inference that the legislature did not intend to so restrict the fees of witnesses in a court of record. If it had [82] so intended, it would have said so when its attention was called to tbe subject. Besides, as tbe remarks of plaintiff’s counsel show, tbe rule adopted by tbe circuit court is difficult in its application, and in many cases would involve parties and witnesses in trouble about fees. In view of these considerations, we bold that a party is entitled to tax full fees for bis witnesses in a court of record, tbougb tbe same persons may bave attended as witnesses for another party in another cause at tbe same term. We bave rather reluctantly expressed our views uj>on this question of practice for tbe guidance of attorneys, tbougb tbe point is not properly before us. This is an appeal from an order taxing costs. Tbe costs in an action constitute a part of tbe judgment, and are necessarily included in it. Tbe judgment is not deemed perfected until tbe costs are taxed and included in it; and therefore, for tbe purpose of review, tbe order must be taken to have been made before tbe judgment was complete. Cord v. Southwell, 15 Wis., 212. An appeal does not lie from tbe order after judgment. Tbe plaintiff, having excepted to tbe order, might bave taken advantage of tbe error in the taxation on an appeal from tbe judgment. Cord v. Southwell, supra; Hitchcock v. Merrick, 15 Wis., 522; Ernst v. The Steamer Brooklyn, 24 id., 616; Hoyt v. Jones, 31 id., 389; Am. Button Hole etc. Company v. Gurnee, 38 id., 533. By the Cotort. — The appeal is dismissed.