Meagher v. Van Zandt

By the Court, Leonard, J.: As we construe the statute governing .the allowance of witness fees in civil actions, it is only necessary, upon the facts presented, to decide whether or not such fees, for mileage or attendance, of the opposite party’s witnesses, can be taxed, and judgment therefor entered against the losing party, when such witnesses have not' been subpoenaed in the case according to law, or sworn or examined, although present in court at the request of the successful party. The question whether such witnesses could compel the party requesting their attendance to pay them reasonable compensation therefor, is not in the ease. The allowance of witness fees is governed entirely by the statute. No amount beyond what is there stated can be taxed, in any event, for any witness; nor can that be, if only a certain class of witnesses are allowed fees, without showing that such witness belongs to that class. The statute provides as follows: “Witnesses required to attend in any of the courts of this state shall be entitled to the following fees : * * * Witness fees in civil cases shall be taxed as disbursement costs against the defeated party. * * *” (Comp. Laws, 2742 ) It is plain from the foregoing that witness fees which may be taxed, mentioned in the last part of the section, are the same as those stated in the first part, which witnesses shall be entitled to receive ; also, that such fees are limited to witnesses who have been required to attend. When is a witness required to attend before a [234] court? Is it one who attends under the obligatory requirements of the law, or one whose attendance is secured by a mere request of a party, or both ? The present fee bill was passed in 1865. The prior one (St. 1861, p. 250, sec. 8) provided that witnesses in civil .cases should have two dollars a day for attendiny before auy court, etc., and twenty cents a mile for traveling to the place of trial. At that time, and at the date of the passage of the present fee bill, the statute in relation to the manner of compelling the attendance of witnesses was the same, in substance, as now. (Stat. 1861, pp. 374, 375; Stat. 1864; Comp. Laws, 1449, 1450.) It provided that “a subpoena may require not only the attendance of the person to whom it is directed, but may also require him to bring, with him any books,” etc. No person shall be required, to attend as a witness before any court * * * out of the county in which he resides, unless the distance be less than-miles from his place of residence to the county trial. * * * The subpoena shall be issued as follows: To require attendance before a court. * * * To require attendance out of court, before a judge, referee, * * * before whom the attendance is required. * * * To require attendance before a commissioner appointed to take testimony. * * * ” At the date of the passage of the present fee bill, as now, there was no other method of requiring or compelling attendance of witnesses in a statutory sense than by subpoena. It is plain that the word “require,” then and now used in the statute, meant and means the saiue as ££ compel. ’ ’ The legislature did xxot intend to say that no person should be “requested” to appear before axxy court out of his county, unless the distance was less than a certaixi number of miles from his place of residence to the county of trial. Webster defines “requix’e” as meaning “to demand; to ask as of right and by authority. We require a person to do a thing and we require a thing to be done. ’ ’ He also says it is rarely used in the sense of “ asking as a favor. ” It is our opinion that when the legislature in 1865 changed the [235] fee bill of 1861, by limiting witnesses entitled to fees to such as are required to attend, it was intended to use that word in the sense iu which it was and is employed in the civil practice act. The then existing statute provided that a. witness might be required to Attend by a subpoena, and the fee bill was changed so as to allow witness fees only when witnesses were so required. Saying that witnesses “required to attend before any court” shall be allowed fees, is the same as saying that witnesses who attend “ pursuant to law” shall receive them. (See Spaulding v. Tucker, 2 Saw. 51; Woodruff v. Barney, 2 Fisher Pat. Cas. 244.) The judgment is reversed, and the cause remanded for trial.