dissenting:
I cannot agree with either the analysis of the majority or the result obtained. I deem there to be no question but that Jones received an order issued under the signature and seal of the U. S. District Court commanding Jones to appear in court at a certain time and place. The Federal statutes prescribe fees to be paid witnesses appearing in federal court. Even assuming that Jones had been in “attendance” at a session of the U. S. District Court, I find no statutory nor case law authority creating a cause of action in such a witness against a party to the action, much less an attorney for a party to the action. I, therefore, suggest that the only logical forum for the resolution of such a dispute is that court which issued the order commanding the witness to appear, whether such court be State or Federal. I see no logical nor practical reason why, when as here, witnesses are subpoenaed, and a case is then settled, that an order of dismissal may not be entered requiring each party to bear its own “costs”. Thereafter, if a subpoenaed witness fails to secure payment and the court deems that he was in “attendance,” the court may simply order the party who procured the issuance of the subpoena to pay the witness. I would note that the instant case differs from those cases in which expert witnesses were seeking recovery of fees earned by them in their capacity as experts. See Anno. 15 ALR 3d 531 (1967).
I find no authority for the maintenance of the present action. In Hurtado v. U. S., 410 U.S. 578, 93 S.Ct. 1157, 35 L.Ed.2d 508 (1973), witnesses filed an action against the United States under the Tucker act to recover witness fees for the time that they were held in custody as material witnesses. That case does not deal with whether the United States was liable because it was the party who sought to have the witnesses testify, or rather because the court system owed the fees. I find no case thereafter which relies on Hurtado for the proposition that witnesses have a cause of action against the litigants or anyone else to recover their witness fees. In Vincennes Steel Corp. v. Miller, 94 F.2d 347 (5th Cir. 1938), the court only stated: “[t]he issue presented involves the power of the court to make the challenged allowances” in awarding witness fees as costs to be paid to the prevailing party, (emphasis supplied). It was only in dictum that the court suggested that those fees are recoverable by the witness from the party at whose instance he attends.
Even assuming that the lower court here had the jurisdiction to entertain the action, I would suggest that the ordinary rule should be applied that an agent is not liable on a contract made for a disclosed principal. Here I deem there to be no question but the attorney was an agent and that the principal was disclosed. Although there would appear to be a split of authority on that question, I perceive those cases applying the above rationale to be those better reasoned. See Anno 15 ALR 3d 531 (1967).