dissenting.
Had the plaintiff, Jones, simply responded to a subpoena properly served upon him, then I would be concurring in the Court’s opinion. But that is not the case.
Finding myself unable to concur in either the opinion of the Chief Justice or that of Justice Shepard, I will briefly state my own views, which, I believe, are eminently more fair to both parties and produce the just result which would have ended this litiga*779tion almost as it began — rather than in this august court.
Initially I surmise that the inability of the Court to reach a unanimous opinion on this small claims action stems from the very fact that it is a small claims action (and very small indeed — involving just over $100). Under the prevalent rules in Small Claims Court, the parties are not entitled to the benefit of counsel, that is, unless they happen to be practicing attorneys. Here, although the defendant is an attorney, he was brought into the action, and certainly did not commence it. Plaintiff, however, who is not an attorney, but did as a process-server acquire some knowledge and experience which ordinarily would not be possessed by the average layman, brought the action, and to whatever extent is possible in Small Claims Courts and informal pleadings, framed the issues. Nothing in the record demonstrates in the least that the plaintiff is learned in the law to the extent of comprehending theories of tort recovery as against theories of contract recovery. Obviously the plaintiff felt that he was entitled to have the defendant pay him his expenses for attending federal court in Boise, Idaho, plus a day’s witness fees. On what basis the plaintiff so “felt” is a matter of conjecture. He did know that he made a useless trip — all of which would not have happened if the defendant had not served him with a subpoena. Had plaintiff been represented, a plausible theory of recovery might have been called to the direct attention of the lower courts.
The other members of the Court see the action as sounding in contract, and would allow recovery to the plaintiff (in either state or federal court — somewhere and against someone) on the basis of quantum meruit, being uncertain apparently as to whether the contractual remedy is based on an obligation implied in law, or an obligation implied in fact, although the law in that regard was fairly well clarified in Peavey v. Pellandini, 97 Idaho 655, 551 P.2d 610 (1976).
Beyond question a subpoena is process, and if properly issued and properly served, and, absent any statutory distance restrictions or professional exemptions, must be obeyed. Under Idaho statutory law a witness who disobeys a subpoena which is properly executed and served is made liable for the payment of $100.00 and the actual damages caused the serving party by the subpoenaed witness’s failure to attend. I.C. § 9 — 708. The party sues the recalcitrant witness in a civil action, and the plaintiff in this action correctly assumed that, conversely, he as an unpaid witness could also seek his recovery against the party.
In order to get this case in perspective, it is first in order to note that the defendant’s client here could not have sustained a § 9-708 civil action1 against the plaintiff— for the simple reason that the subpoena was not properly served, the requisite fees not being tendered.
Beyond question is the fact that the plaintiff did not have to respond to the federal court subpoena because of the failure to tender the requisite fees, and equally apparent in this particular case is the extremely singular fact that the plaintiff was well aware of the fact that he was entitled to fees in advance. And that might have been the end of it. But it wasn’t.
Defendant here, an attorney, who commendably accepts responsibility for the statements of his secretary, represented to the plaintiff that he, the plaintiff, as a subpoenaed witness in federal court, would render himself susceptible to contempt processes if he failed to attend as the subpoena directed. The statement was obviously made in order to induce the plaintiff’s appearance at federal court. It was a misrepresentation which, even though innocently made, was actionable. Had it accomplished its intended purpose, the plaintiff’s theory would have been in tort, not in contract. The plaintiff’s final statement, however, was that he would not attend court, *780notwithstanding the advice that he would thereby be exposing himself to the court’s contempt processes. Had he stood by that decision, that might have been the end of it. But he didn’t, and it wasn’t.
Plaintiff, obviously influenced to some extent by the admonitions given him, upon reflection sought out and obtained independent legal advice — which was that he had best attend court as the subpoena directed. And so he decided to do so, but did not so advise the defendant’s office of his change of heart. Nor did the defendant make any attempt to advise the plaintiff that the action pending in federal court had been settled, and there was no need for the plaintiff to attend on the scheduled day or to continue to fret about going or not going.
Although the defendant argues that the plaintiff’s needless trip to Boise was occasioned by the independent legal advice obtained by the plaintiff, and hence would be an intervening cause superseding the bad advice received from defendant’s office, that issue, and the issues of negligence on the part of both parties in not advising each other of the change in conditions, i.e., the settlement of the action, and the plaintiff’s decision to attend court, have actually never been tried. It is extremely likely that plaintiff acted on both advices, but that cannot be said at this level. Such being the case, it would be in order to reverse and remand for the purpose of resolving that issue of causation, including the failures to notify.
In the interests of justice, however, and with due and circumspect regard for the fact that this Court has often declared itself to not be a trial court, but see Lamb v. Robinson, 101 Idaho 703, 620 P.2d 276 (1980), by application of tort theories of liability and damages, and with proper regard for the fact that we do have undisputed evidence, making the final determination almost, if not, a matter of law, I would modify the plaintiff’s judgment by reducing it to one-half, and leave each party to pay his own costs on appeal, other than the preparation of the transcript which should be assessed equally.
Finally, I submit that the contention that defendant, an attorney, should escape liability, which in turn ought to be fixed upon the client whom he was representing in federal court, is wholly without merit. The power to take a person away from his work, from his play, his avocations or whatever, is an awesome one. But the process known as subpoena confers just that exact power, and has been part and parcel of the judicial system for as long as there has been a judicial system — which in Idaho predates statehood. That power has been exercised by judicial officers, either judges, clerks of the court, or attorneys. I don’t know, and am certainly not going to conduct a survey to find out, but would surmise that if a litigant being represented by an attorney were to approach a clerk of the district court and request the issuance of a subpoena, in most cases, if not all, he would be turned away empty-handed — returned to his attorney. And I would agree. The power is an awesome one, and I would strongly doubt the advisability of turning it loose on the public other than under the controls of attorneys, and, in the case of pro se representations, then under the control of judges or court clerks.
Most practicing attorneys would agree, I feel certain, that it is the trial attorney, not the litigant being represented, who determines the witnesses who will be required, when they will be required, and whether they should be subpoenaed. While I would not be averse to the suggestion that the client might also be held amenable to a claim for fees of unpaid witnesses, or abuse of process, I am not in the least persuaded that the attorney, a judicial officer, becomes freed of liability simply because the questionable action is taken on behalf of a client. Quite the contrary. If defendant’s client here had directed the defendant to get the plaintiff to court by any means, fair or foul, including not paying him and threatening him with contempt of court, that would be a different matter, but certainly not this case.
For the interested reader I recommend Board of Education of Farmingdale Union *781Free School Dist. v. Farmingdale Classroom Teachers Ass’n, Local 1889, et al., 38 N.Y.2d 397, 380 N.Y.S.2d 635, 343 N.E.2d 278 (1975), where properly issued process (subpoenas) were held to have been abusively misused, and the attorney was held liable along with his client for “prima facie tort” —“the intentional infliction of economic harm.” 38 N.Y.2d 397, 380 N.Y.S.2d at 644, 343 N.E.2d at 284.
It would seem to follow that an attorney armed with a properly issued subpoena cannot withhold requested fees and yet seek to compel attendance by. threats of contempt without becoming exposed to liability for abuse of process.
. Although § 9-708 might not be thought applicable to an action in federal court, the common law seems to have recognized the remedy of a civil action. Federal law may, but X make no attempt to pursue that possibility.