The cause not being at issue when the May term was held it was neither necessarily nor properly on the calendar for that term. (Code Civ. Proc. § 3251.) Unless there is something in the case to take it out of the general rule it was clearly improper to tax a term fee or witnesses’ fees for that term.
The respondents seek to avoid the application of such general rule because of an understanding with counsel for plaintiff to the effect that the cause would be placed in readiness for trial and tried at the May term, and that relying on such understanding they prepared for trial and subpoenaed witnesses for said term.
Counsel for plaintiff says in an affidavit that a conversation was had before the order of substitution was made, in which conversation it was stated “that if they could get an order of substitution and the new pleadings ready, and both' parties be able to get ready for trial, that a trial at said May Term would be agreeable to both, but it was further distinctly stated and understood between said *553parties that neither party would be understood as putting himself in a position to be forced to trial, or of promising to try said case at said term.”
No agreement in writing was made as required by rule 11 of the General Rules of Practice, and this controversy resulting from such alleged oral agreement, which may more properly be called an oral disagreement, demonstrates the wisdom of the rule requiring agreements of attorneys to be reduced to writing.
I do not think, however, from the version of the negotiations as given by the respondents’ counsel, that the latter was entirely blameless in incurring these disbursements for the May term. It frequently happens that counsel on different sides of a cause indulge in expressions of a desire to dispose of such cause at an approaching term of the court, and of an intention to do so if possible. I cannot discover from the affidavit of respondents’ counsel that counsel for the appellant did anything more. ' That affidavit states that several conversations took place, “ and that it was talked and agreed * * * that the action should be tried at said term of court held in Saratoga county on the 20th day of May, 1907, if it could he done, and that said defendants Kathans’ answers to said supplemental complaint might be served at any time before their time to answer had,expired after the service of said supplemental complaint and the cause was set down for trial on the call of the calendar of said court on the opening day thereof for the 23rd day of May, 1907.” Here was no unqualified agreement to try the case at said term. It does not clearly appear that plaintiff’s counsel knew that on the call of the calendar the cause was set down for trial for the twenty-third of May, or that he acquiesced therein. The order for the substitution of the plaintiff had been opposed by the respondents. At least twice before the May term plaintiff’s counsel had requested the service of respondents’ answers, but they had not been served when the cause was actually reached for trial. There was, therefore, nothing to try. Respondents took the unusual and irregular course of preparing for trial and subpoenaing their witnesses before serving their answers. -Until an issue was formed there was.no occasion for witnesses. The respondents certainly cannot complain of plaintiff for not trying the case when because of their own delay and negligence it was not in readiness *554for trial. They should also have known that even if they had promptly served their answers, the cause nevertheless could not have been tried until the other defendants had either pleaded or were in default. I think the respondents should attribute their unnecessary expenditure of witnesses’ fees to their own looseness of practice rather than to the unfairness or duplicity of opposing counsel.
The fees of the witness Gotthelf for the October term were properly taxed, although he was an attorney at law and rendered services for the respondents in connection with the cause. The services were of such a nature as might have been performed by one not an attorney, and he did not sustain the relation of attorney or counsel to the action within the meaning of section 3288 of the Code of Civil Procedure.
The order should be modified so as to disallow the term and witnesses’ fees for the May (1907) term, and as thus modified affirmed so far as appealed from, without costs.
All concurred.
Order modified so as to disallow term and witnesses’ fees for the May (1907) term, and as thus modified affirmed so far as appealed from, without costs.