662
·.
one of .the several suits in which they 'respectively entitled and admittod in evidence, though each deposition was only once written out; . the opinion· using this language:' "It·was. for the parties to agree thatthe fee should .be taxed but 'once for the group of cases, if that was to be the rule. " Otherwise the fee was taxable, !,>ecause the deposition was in each case, .although the writing was not repeated for each case." with the ruling of the learned justice. It comeS as well I quite 'Within the. yery literalism oithe statute as within its spirit and meaning, and I ca:t;l find nO case, since the original enactment of our fee-bill in 18053, which has eyer held otherwise in principle, ol'upon similar facts. The clerk's taxation is therefore approved, anda:retaxation of these items denied. His allowance, of the witness _ fees is also proper,' statute gives "for each day's attendance in court, or before any officer pursuant to law, one dollar and fifty cents, andfi"e cents a mile froUl going from his place of residence to the place oftriaJ or hearing, and five cents a mile .for returning. When a witness issubprenaed in more than one caUse between the same parties, at the same court, only one travel fee and one per diem compensation shall be allowed for attElJ:lrlance;" the section providing how shall be taxed. There is no dispute but that the di$tances charged for were actually traveled by the respective witnesses, and the attendance as charged and proven upon oath. is admitted. In determining It similar question in Wooster v. Handy, gupra, the court in its opinion says the statute means that he is, entitled to" his prescribed witness fees "in each suit in which he attends," and demonstrates. that. the special provision for a witness "subprenaed in more than one ,cause between the same parties, at the same court," does not apply "where he attends in morethlln one cause between different parties, .and where only one of the parties is the same." Obviously this is correct, and cases need not be cited to the proposition that a witness subprenaed in more than one case in the court is entitled to his fees in each, the parties being different. Indeed, but for ·the provision in the statute cited,· he would be so entitled. irrespective of the parties to the suits in .which he attends as a witness under process. Parker: v. Bigler, 1 Fish. Pat. Cas. 285. So, also, when one attends as a juror and witness at the same time, in the same court. Edwards v. BondI 5 McLean, 300. Nor is there any distinction in fact, as counsel seem to suppose, or in the. statute, between attendance "in court," and "before any. officer pursuant to law," so far as the fees. pertaining thereto, and due to the witnesses therefor, are concerned. The statute cited treats- the fees for each acter of attendance just the same, and in terms negatives any such distinction as.if;! here claimed. The parties or their -counsel should look to the economies of the case during its preparation for trial, and count the· costs while it is in progress, taking the necessary steps to prevent useless expense before taxation rather than afterwards. . It follows that. the motion to retax must be denied.
O'NEIL 'V. KANSAS CITY I S. &: M. R. CO.
663
OlNEIL 'V. KANSAS CITY, S. & M. R. CO. ARMSTRONG 'V. SAME. THOLOMEW 'V. SAME. ALLEN 'V. SAME.
BAR-
(Oircuit Oourt, .1.
w: D.
Tennt88e6. July 20,1887.)
COSTS-WITNESS FEES-REMEDY FOR RECOVERING.
A witness subprenaed by the prevailing party to the suit cannot,upon,his own motion. have his fees that remain unpaid taxed in the bill of costs against the losing party; and it.seerna that the prevailing party himself cannot have them taxed until he has paid the witness, either before or after the service has been rendered, and before judgment for costs.
2.
UNITED STATES COURTS-STATE PRACTICE AS TO CosTs.
The' federal statutes regulate the matter of fees and costs in the courts of the United States, and the statutes and practice of the state are not binding iu matters comprehended by the federal statute. Hence any state practice of indulgence of credit for the fees of litigation until final judgment for costs, .· doesmot obtain in the federal courts. where the act of congress prescribes. a specific regulation on the subject. The Tennessee practice of giving credit for fees until final judgment, and return of nulla bona against the losing party. is a voluntary indulgence by the persons entitled to the fees, and not, perhaps. a striclright under the statutes of the state·
.Application for Witness Fees. , These were ,suits f()r damages sustained by the plaintiffs by reason of the constructio:{l by de'fendant of its railroad tracks along the street in front ·,of- their property, wherlilby the ease of ingress and egress was impaired. several such S\1.its, brought by other owners having property by t;he railroad,· and all resulted, in abutting on the street so juqgmentsagainst the defendant. In several instances the sa,me witneS!'! waSis!llmoo<ilned for the plaintiff in more than one case, though there is po pretense that any witness was paid or tendered his fees, before or after attending the court, by anyone of these plaintiffs. The costs in the disposed of, including witn\'lss fees, 'were paid by the defendant; b\lt, it refused to pay the fees of certain witnesses in the other '(lases, who had been already paid for attendance, on the grounds tha;t iherewas r10 sufficient evidence of such attendance, that the fees claimed were not bonafide, and that the witnesses were entitled to their several fees in but one case, irrespective of the number of cases in which they were summoned. Whereupon this application is made by two of the ,wit(nesses, who appear by counsel, and ask "that the defendant be ordered The plaintiff in no one of the cases has taken any part in thiR 'application, which is wholly ex parle, by the witnesses. E. B.lr.fcHenry, for the application. Newman Erb,contra; , H4MMO;ND, J. IIi the cases of Archer v. I'MUrance Cos., ante, 660, (decided' at the April term, 1887,) I ruled that, under section 848 of summoned in several suits, and who atjten,ded,. under'service upon of subpf;Blla in each suit, was entitled fees in all the cases, the parties being different; and that the fact that. there was a common defendant, the plaintiffs not being the same, did