Wilson v. St. Louis, Keokuk & Northwestern Railway Co.

Biggs, J. — This is an appeal from a judgment of the circuit court, overruling a motion to retax costs. The action was for personal injuries. There was a trial, which resulted in a verdict and judgment for the defendant. The clerk of the court allowed and taxed as costs mileage in favor of certain witnesses, who had in writing accepted service of the subpoenas. The subpoenas were regularly issued, and the witnesses attended the trial. They lived more than forty miles from the place of trial, and their fees were not tendered. Upon this state of facts the circuit court ruled that the [344] action of the clerk in allowing the witnesses mileage was proper. The plaintiff has appealed. The question involves the construction of the statute pertaining to the fees of witnesses. That portion of section 5003, Revised Statutes of 1889, which is pertinent, reads: “Each witness shall be 'examined on oath by the court, or by the clerk when the court shall so order, or by the justice, as the case may be, as to the number of days of his actual necessary attendance, under subpoena or recognizance, and the number of miles necessarily traveled.” The question is, did the witnesses attend the trial in obedience to a subpoena? If so, they are entitled to mileage. While the statute does not provide for acceptance of service of a subpoena, we know of no good reason why a witness could not dispense with the legal forms of service. In Pennsylvania it was expressly decided that he could. Feree v. Strome, 1 Yeater (Pa.) 303. A subpoena is not directed to an officer, but to the witness himself. In the case of Herson v. Railroad, 18 Mo. App. 439, subpoenas were not issued. The witnesses attended the trial at the request of the defendant. The Kansas City Court of Appeals held, and we think properly, that the attendance of the witnesses in that case was purely voluntary, and that they were not entitled to claim mileage. But this cannot be said of witnesses who have accepted service of subpoenas. Attendance by them should be regarded as in obedience to or “ under subpoena.” And we think this is true, although the witnesses live more than forty miles from the place of trial, and the legal fees have not been tendered or paid. The right to have fees paid in advance may also be waived. The judgment of the circuit court will be affirmed. All the judges concur.