Schuler v. Minneapolis Street-Railway Co.

COLLINS, J. Appeal from a judgment for defendant’s costs and'disbursements. Tbe facts were that plaintiff and bis wife, while riding in a carriage, came in collision with one of defendant’s cars, and received! personal injuries. Tbe wife brought an action to recover damages, and this plaintiff also brought an action of tbe same nature. In addition to bis claim for personal injuries, plaintiff sought to recover for money paid out for medical treatment given bis wife and damages for bis broken carriage. Under an agreement, tbe cases were tried and submitted to a jury together, separate verdicts being returned. That in tbe action brought by the wife was in her favor, and judgment entered thereon has been duly satisfied and paid. In this action — tbe one brought by the husband — tbe verdict was in defendant’s favor. On this verdict it attempted to enter judg [50] ment for statutory costs, and for its disbursements, to which several objections were made by plaintiff’s counsel, and overruled by the court, the judgment appealed from being finally entered. From the'affidavits and a stipulation of facts used at the hearing by the court below, it appears that after it had been agreed that the causes should be tried together, separate verdicts to be returned, defendant caused a subpoena to be issued in this action for service upon the witnesses whose fees are now in question. This subpoena was served and the fees paid. All of the witnesses attended at the first trial, which resulted in a disagreement, but two were not sworn. All but these two attended and were sworn at the second trial, in which these verdicts were rendered. All witnesses subpoenaed and sworn for defendant at the • second trial, whose fees are included in the judgment, were necessary and material for the defense in each action, and if the actions had been separately tried would have been produced and sworn on the trial of each. The defendant’s bill of costs and disbursements was filed, as provided in G. S. 1894, § 5505, whereupon plaintiff’s attorney filed in writing one general, and several special, objections, and these were duly certified to the district court for determination. The items as detailed were allowed, with one exception, and the judgment entered. 1. The general objection was as to each item, and was based upon the admission, before referred to, that all of the witness fees in question were for witnesses whose attendance was necessary and material in one case as much as in the other, and who would have been produced and sworn in both, had there been separate trials. The objection was that no costs or disbursements could be taxed in defendant’s favor, because the causes were tried together by consent of parties, and that in the action brought by the wife the verdict was against'this defendant, the costs and disbursements had been taxed and allowed, and the judgment entered and duly paid. A majority of the court are of the opinion that this objection is without merit. It was incumbent upon defendant properly to prepare for its defense in this cause, as well as in the other, and there was nothing-irregular or improper in the issuance and service of a subpoena in [51] this particular action. That it had been agreed that the causes should be tried together might be a good reason for not issuing subpoenas and paying fees in both, but would not justify a failure so to do in one, and it was for defendant to determine which one. Gr. S. 1894, § 5498, provides for the allowance of ten dollars statutory costs to the prevailing party in actions commenced in district court, where judgment is rendered in his favor on the merits.' Such was this case. By section 5500, the prevailing party is also to be allowed all disbursements necessarily paid or incurred in every action commenced in district court, except certain actions of which a justice of the peace has original jurisdiction. It is beyond dispute that the disbursements in question were necessarily paid or incurred in the defense of an action in which the party who taxed the same prevailed on the merits, although the witnesses to whom the fees were paid were equally as necessary in the other action. Holding that because the verdict in the other cause was against defendant it should be deprived of its statutory costs and all disbursements, paid or incurred in this, would be to punish it for consenting that the causes might be tried together, and thus to discourage a very commendable practice in all cases controlled by the same state of facts. We have called attention to the fact that the general objection was as to all of the fees paid to these witnesses. There was no suggestion below, nor has there been any in this court, that an equitable apportionment of these disbursements should have been made, and that the court below should have charged up to the other action a portion of these fees. If such a question was before us, it would be considered, but it is not. Section 5505 expressly provides that a party objecting to any item presented in the bill of costs and disbursements shall specify in writing the grounds of objection, and, in case of appeal, these objections are to be certified to the court by the clerk. The appeal is to be heard and determined by the court upon the objections so certified, “and none other.” The ground of objection urged before the clerk, and also on the hearing before the district, court, we have already stated. We need not repeat. The object of this section was to prevent a party appealing from urging before the court any ground [52] of objection which the clerk had not been called upon to determine. Davidson v. Lamprey, 17 Minn. 16 (32). The ground of the general objection as originally made was that, for reasons which we hold untenable, no part of these costs and disbursements should be taxed and allowed by the clerk. Now to reverse the tribunal which passed upon that ground of objection because, for equitable reasons, it had the power, perhaps, to adjust and apportion a part or all of these items, would not only allow upon appeal a new ground of objection, but would be very unfair and unjust to defendant. 2. The special objections, which need some consideration, are two in number. Two of the witnesses subpoenaed at the first trial, one of them a surgeon, were not sworn. Nor did they attend the second trial. The law is well settled that: (1) It is not error to allow costs for travel and attendance of witnesses, who were not sworn at the trial, where the attendance of such witnesses is regularly proved. Baumbach Co. v. Gessler, 82 Wis. 231, 52 N. W. 259. (2) It is not an abuse of discretion to allow a successful plaintiff' to recover the fees and mileage of a witness subpoenaed, but not used, where there is evidence that the plaintiff summoned such witness under a belief, induced by defendant’s conduct, that his testimony would be needed in rebuttal. Ohio v. Trapp, 4 Ind. App. 69, 30 N. E. 812. (3) Fees of witnesses actually in attendance, though not called to testify, are properly taxed, where, if a certain state of facts had been shown by the other party, such party would have been compelled to call such witnesses. Com. v. Swisher, 3 Pa. Dist. 662. The attendance of these witnesses was regularly proved under a, well-justified belief, induced by plaintiffs’ conduct, that their testimony would be needed. It turned out at the first trial that their-attendance was unnecessary, and no attempt was made to have-them present at the second. The court below did not abuse its discretion in allowing these items of disbursements. Judgment affirmed.