Pearson v. Quinn , 120 Ark. 610 ( 1915 )

Smith, J.

This appeal involves the liability of appellants for the fees of the witnesses who proved up their attendance in the circuit court in the litigation there over the revocation of an order of the county court- of Miller County prohibiting the sale of intoxicating liquors within three miles of the public high school in the city of Texarkana. At the trial of that cause the circuit court revoked this prohibitory order, and an appeal from that judgment was prosecuted to this court. But this appeal was dismissed for the reason that “where there is nothing to be determined on an appeal to the Supreme Court but the question of liability for the.costs of the litigation, the appeal will be dismissed.” Pearson v. Quinn, 113 Ark. 24.

There appears to be nothing in the present record to show that any witnesses, other than those who were subpoenaed at the instance of appellants, claimed fees for their attendance in the circuit court, and it is not shown but that all of said witnesses were summoned on the part of the appellants upon the trial in the circuit court.

It is urged that appellants are not liable for these fees because no statute fixes this liability. It has been said in a number of cases that the right to recover costs did not exist at common law, but rests upon statute only. The leading case to this effect is that of Wilson v. Fussell, 60 Ark. 194. Other cases so holding are Letchworth v. Flinn, 108 Ark. 301; Buchanan v. Parham, 95 Ark. 81; Burton v. Chicago Mill & Lbr. Co., 106 Ark. 296; Buckley v. Williams, 84 Ark. 188; Davis v. Moore, 70 Ark. 240.

In the case of Wilson v. Fussell, supra, the court expressly refrained from deciding whether or not the officers who served the process, and the witnesses who testified in the case, .were entitled to costs against the party at whose instance they perf ormed the service, or in whose behalf they testified. But the opinion contains no intimation that these costs would not have been charged against the party at whose instance they were incurred had that question been involved in the case.

That there can be liability for some costs in litigation arising under the Three-Mile Law is shown by the opinion of this court in the case of Pearson v. Quinn, supra, and in the opinion in the case of Wilson v. Thompson, 56 Ark. 110, it is expressly so decided. In this last mentioned case, which was also a contest under the Three-Mile Laiw, the court said that the appeal in that case was fruitless and only the costs of the litigation were involved, yet that case was decided because of the public interest of the questions involved, although it was said that otherwise the court would not have done so for the mere purpose of determining liability for costs, as costs are only an incident to litigation and can not be made the subject-matter of appeal any more than of the litigation.

We see no reason why the costs here' involved should not ¡be assessed in litigation arising under the Three-Mile Law, under which this litigation arose. Petitioners, as such, do not become parties litigant to proceedings under the Three-Mile Law. Persons who merely sign a petition, either for the making of a prohibitory order, or a petition for the revocation of a prohibitory order previously made, do not thereby become parties to litigation which arises upon the hearing of these petitioners any more so than does the elector, who merely votes at an election, becomes a party to a contest growing out of that election. Persons become parties litigant to proceedings of this kind only upon their own motion. Here appellants were not even petitioners, and they became parties upon their own motion. The law contains no provision for remonstrances or for counter-petitions. Bordwell v. Dills, 70 Ark. 175, and cases there cited. But the law does permit any one who has an interest in the controversy to make himself a party, and thereafter the persons so made parties have control of the litigation, and only such persons can take an appeal from' the judgment of the county court, or the circuit court, upon a finding adverse to their position.

The attendance of witnesses can be compelled by ■attachment, and the imposition of fines, in such cases, but process for the attendance of these witnesses can issue only upon the direction of some one who has made himself a party to the proceedings, and if such person puts in motion the machinery of the law to compel the attendance of some witness who has no volition in the matter of his attendance, such person should be held liable for the fee fixed by law for witnesses. It does not lie in the mouth of one who compels another to give of his time, and to perform a service, to say that he will not pay for this time and service because no statute expressly fixes that liability. But the fee should be charged upon the assumption that there was an implied obligation to pay the fee fixed by law. It will be observed that this is not the case of a successful litigant asking judgment for Ms costs against Ms unsuccessful .adversary but is the case of witnesses asking that they be allowed the fees fixed by law against the litigant who required their attendance. The judgment of the court below is affirmed.