Merriman v. Bowen

Mitchell, J.

For attendance in any action pending in a court of record, the fees of witnesses are one dollar for each day, and “for travelling, at the rate of six cents per mile in going to and returning from the place of attendance, to be estimated from the residence of such witness, if within this state, or from the bounda/ry line of this state which such witness passed in coming, if his residence is out of the state.” Gen. St. 1878, c. 70, § 8. The statute regulating the taxation of costs to be inserted in the entry of judgment provides that “the disbursements shall be stated in detail, and verified by affidavit.” Gen. St. 1878, c. 67, § 8. The conclusion to be drawn from all the decisions under this and similar statutes is that it devolves upon the party claiming disbursements to show, by his statement and affidavit, at least prima facie, that they are such as he is entitled to have taxed. Hence if a party claims travelling fees for witnesses, his affidavit should state the place of residence of each witness, and the number of miles they respectively travelled as such witnesses for the purpose of going from such place of residence to the place of trial and returning therefrom. No other rule 'will fairly meet the requirements of the statute, or *299effectually guard against overcharges. Andrews v. Cressy, 2 Minn. 55, (67;) Osborne v. Gray, 32 Minn. 53, (19 N. W. Rep. 81;) Ehle v. Bingham, 4 Hill. 595; Logan v. Thomas, 11 How. Pr. 160; Wheeler v. Lozee, 12 How. Pr. 446; Haynes v. Mosher, 15 How. Pr. 216; Toll v. Thomas, Id. 315; Taaks v. Schmidt, 25 How. Pr. 340.

Applying these rules to plaintiffs’ affidavit, it was clearly insufficient to authorize the allowance of travelling fees of witnesses. It does not state their places of residence. Its only allegation as to their travel is that each of them actually and necessarily travelled the number of miles in attending said trial set opposite his name. This might be literally true, and yet the witness for whom 600 miles’ travel is claimed have been a resident of, and subpoenaed in, Minneapolis, and then gone 600 miles from home for some temporary purpose before trial; or he might have been a non-resident, who actually trav-elled 600 miles in coming to the place of trial, but in doing so passed the line of the state within 20 miles of that place. We therefore think defendant’s second objection to the bill of costs should have been sustained.

The affidavit is, in some other respects, rather short, but we are inclined to think that, except as to travel fees for witnesses, it could be sustained.

The cause is remanded to the'district court, with directions to modify the judgment by deducting therefrom the travel fees for witnesses, unless the plaintiff shall, upon such terms as the court may fix, file a new affidavit as to the residence and travel of witnesses.