Young v. Merchants' Insurance

Simonton, J. This is a question of taxation of costs, coming up on review of a taxation by the clerk of this court. The action was on a policy of insurance. It was originally brought in the circuit court of South Carolina, sitting for the county of Abbeville, and was removed into this court, the controversy being between a citizen of South Carolina and a corporation created under the laws of the state of New Jersey. The first.question is as to costs incurred in the state court. As we have seen, the action was commenced in the state court. A petition for removal, with every -formality required by law, was filed on seventeenth October, 1884, to the first term at which the case was triable. The case was within the act of congress. The state court had no power to refuse the removal, could do nothing to affect the right of removal, and its rightful jurisdiction ceased eo instanti. Dill. Rem. Causes, (3d Ed.) 92. Every subsequent exercise of jurisdiction was null and void, and every step coram nonjudice. Dill. Rem. Causes, (3d Ed.) 93, note; Steam-ship Co. v. Tugman, 106 U. S. 122; S. C. 1 Sup. Ct. Rep. 58. Nor is the adverse party entitled to notice of the time and place of presenting the motion. Dill. Rem. Causes, (3d Ed.) 92, note 2. This being the case, all costs taxed for witnesses in the state court on subpoena issued, as is admitted, after seventeenth October, 1884, are disallowed, and all costs of the clerk and sheriff after that date are not chargeable on defendant. The action having been removed, and motion to remand having been refused, was tried in this court, April term, 1885, and resulted in a verdict for the plaintiff, which was set aside. It was tried again at April term, 1886, resulted in a verdict for plaintiff, and a motion to set aside the verdict was refused. The witnesses resided more than 100 miles from the place of trial, but were residents in South Carolina, in the county of Abbeville, for the most part. Abbeville is in what is known as the Western district of South Carolina. The place of trial was at Charleston, in what is known as the Eastern district. All, or nearly all, of the witnesses on the first trial were also witnesses under subpoena in another cause between the same plaintiff and another insurance company, known as the Farmers’ Insurance Company, and were paid per diem and mileage. The number was 13 in all. At the trial in April, 1885, when witnesses were called as to the value of the property, the defendant’s attorney admitted as proved the testimony they were prepared to give, and they were not examined. Thirteen witnesses were present under subpoena. There is no evidence that plaintiff has paid them their per diem and mileage. The clerk has taxed up as costs per diem and full mileage for those witnesses. The first objection taken by defendant is that mileage cannot be taxed for witnesses who reside more than 100 miles from the place of trial,— certainly for not more than 100 miles going, and the same number returning. Mileage- can be charged in every instance in which a subpoena [275] can be issued and enforced. The subpoena can be used to compel the attendance of a witness, if he lives within the jurisdiction of the court out of which it is issued, or, if he be without the jurisdiction, if he live within 100 miles of the place of trial. Dreskill v. Parish, 5 McLean, 241; Anon, 5 Blatchf. 134; Spaulding v Tucker, 2 Sawy. 50. All parts of the state of South Carolina are within the jurisdiction of this court. Its process runs all through the state. It does not know, in the sense which affects its jurisdiction, either the Eastern or Western district. This objection. is overruled. That any or all of the witnesses examined in this action in April, 1885, were also in attendance on the court in another cause, not between the same parties, and that they have been paid for such attendance, cannot deprive them of their right to per diem and mileage in this case. If they were under subpoena to testify in this case, and so came and attended, they have earned their compensation. Parker v. Bigler, 1 Fish, 285, quoted by Desty, Fed. Proc. 445. This exception is overruled. Although 13 witnesses were examined, the plaintiff cannot tax per diem and mileage lor more than throe to each issue. Bussard v. Catalin, 2 Crunch, C. C. 421; Gen. St. S. C. § 2192. The clerk will reform the taxation, if need he, to conform to this rule. Where issue has been joined, and the points in’controversy fixed, it is the duly of the plaintiff, or the party on whom is the burden to summon his witnesses, to have them present to testify. If at the trial the other party admit the particular points to be proved by such witnesses, they, nevertheless, are entitled to per diem and mileage,—that is to say, their %>er diem up to the admission of their testimony. They cannot get per diem for any day afterwards during which they may attend the trial. To this extent this objection is overruled. It is also claimed that no per diem or mileage can he taxed for witnesses, unless it he shown that such witnesses have been paid by the party who subpoenaed them before or at the trial. The ease of The Highlander, (Betts, J.,) 19 How. Pr. 334, quoted in 4 Ben. 358, is cited. The true rule is this: The pei diem and mileage of a witness cannot bo taxed in the costs of the judgment, unless the witness himself claims this compensation. Clark v. Linsser, 1 Bailey, 190. He can demand thorn before ho obeys the subpoena. He does not waive them by not insisting upon prepayment. Having made his demand before judgment entered, the party summoning him is bound to pay them, and being so bound ho can tax them up in his costs. The per diem and mileage of all witnesses who, under this opinion, are entitled to them, and who have presented and proved their claims, can be taxed in this cause. At the second trial in April, 1886, nine witnesses attended. Some of tírese were subpoenaed to testify as to points admitted on the former trial. All of them lived more than 100 miles from the place of trial and in tins state. No stipulation or entry was made on record that the facts admitted on the first trial would lie admitted on the second trial, nor was any assurance, verbal or otherwise, given to this effect. The [276] plaintiff was hound to prepare and prove his case. The per diem and mileage of these witnesses, subject to the rule that hut three could be used for edch issue, can properly be taxed. Between the first- and the second trial this court met in Columbia, in November, 1885. The cause was on the docket, and could be tried. The plaintiff’s attorney learned before court met that there would be no trial, and was able to inform all but two witnesses. These attended that court. They are entitled to mileage and per diem. Certain depositions were taken in the cause, de bene esse, issued out of the state court. If these were issued before petition for removal, costs of witnesses attending them can properly be taxed, even if the depositions were not used because of the presence of the witnesses who were .thus examined, or because the facts testified to bjr them were admitted. Otherwise, they cannot be taxed. The fees of three commissioners are also charged. Three were unnecessary, unless the defendant assented. If he did not so assent, and if the depositions were issued before petition for removal was filed, let the costs of one commissioner, $10, be allowed. Let the clerk reform the taxation in accordance with the rules above laid down.