Anderson v. Moe

WITHEY, District Judge. The first objection is not allowable. If a witness is present at the trial his deposition ought not tp be used. If the testimony was material, the-party had a right to have the witness present before the court and jury, if his attendance could be procured. The second objection is not well made, and that and the third will be considered together. If a witness resides in another state, and more than one hundred miles from the place of trial, a subpoena cannot be made effective; its service will be useless; it will afford no ground for an attachment. Is a party, therefore, obliged to take out a commission to take his testimony? or if the personal presence of the witness be deemed essential, and it can be procured, is the party deprived of the benefit of the act of 1853, which allows witnesses’ fees for each day’s attendance in court, one dollar and fifty cents, and five cents per mile for traveling from his place of residence to said place of trial, and five cents per mile for returning? Both questions are answered in the negative. . No rule of court and no construction can properly be allowed to override the plain language and obvious import of this enactment. Under the act of 1799, it was held that traveling fees were allowable from the residence of the witness, although without the state, and more than one hundred miles from the place of trial. 3 Story, 84, [Whipple v. Cumberland Cotton Co.. Case No. 17,515.] Before the passage of the act of 1853, 845 it was held, — 5 McLean, 241, [Dreskill v. Parish, Case No. 4,076,] — under the act of 1709, that, if the witness “attended voluntarily, or without summons, his fees cannot be ■charged against the losing party.” This is but a'literal rendering of the act of 1709, and, of course, it will hear the construction .given it. That enactment allowed compensation “to witnesses summoned,” and not, as in the act of 1853, “to witnesses for each ■day’s attendance, &c.,” without reference to whether the witness be “summoned” or not. Clearly, under the act of 1853, a witness who attends by procurement of a party because his testimony was deemed material, is entitled to the per diem of one dollar and fifty cents, and traveling fees from his place I -of residence, and for returning, provided he j actually traveled so far to reach the court, as it would be from his residence to the court. The taxation made in this case is proper. ;