Herson v. Chicago & Alton Railroad , 1885 Mo. App. LEXIS 359 ( 1885 )

Opinion by

Ellison, J.

This cause was tried in the circuit court of Jackson county, at Kansas City, at its October term, 1883, and resulted in a judgment for the defendant.

The witnesses, John Hamilton and-Herryman came from Slater, Mo., (Saline county), to Kansas City, for the sole purpose • of testifying, and did testify for the defendant at the trial of the cause. Their testimony was material for defendant. No process was served upon-them requiring their presence, but they attended the trial voluntarily and at the instance and request of defendant only.

The clerk of said court taxed as cost, in the case, and against plaintiff, the sum of $10.50 in favor of. each of said witnesses, making the aggregate of $21.00, being mileage from Slater to Kansas City and return, and one day’s attendance at the rate allowed by statute to witnesses.

Thereupon at the same term of the court the plaintiff filed a motion for there-taxing of said costs, which is in words and figures following :

“The plaintiff, against whom judgment was rendered for costs in the trial of the above entitled cause, moves the court to re-tax and abate the fees of John Hamilton and-Herryman, for the sum of $10.50 each, making $21.00 in the aggregate, as allowed them by the clerk of this court, as witnesses, and taxed as cost against the plaintiff, for the reason that said parties appeared before the court as witnesses for the defendant, voluntarily and without being summoned by any legal process whatever.”

This motion was tried on the following statement of facts, viz: “The witnesses, Hamilton and Herryman, were summoned by no legal process whatever, but came from Slater, Mo., to Kansas City, Mo., at defendant’s request, for the sole purpose of testifying, and did testify in the trial of this cause, for the defendant, and were material in the cause for the defendant.

“ That there was taxed in favor of said witnesses by the clerk and against the plaintiff, the sum of $10.50 each, being mileage to and from Slater and one day’s attendance.” No other evidence was offered.

The court overruled the motion and refused to •re-tax said costs and entered judgment, on the motion, that plaintiff take nothing by the motion and that defendant go thereof without day, etc., to which action of the court the plaintiff duly excepted, and brings his case to this court by appeal.

The motion to re-tax should have been sustained. The witnesses were not subpoenaed or recognized to appear. Their coming was wholly voluntary, and mileage was not properly taxed against plaintiff. The statute section 5620 (laws 1881, page 135), prescribes that the witness may be examined under oath as to the number of days he has actually and necessarily attended and the number of miles he has necessarily traveled, under the subpoena. By the terms of section 5621, Revised Statutes, the clerk is required to enter on his witness book, the number of days the witness has attended “and the number of miles he has necessarily to travel in consequence of the summons or recognizance and shall'swear the witness to the truth of said entry.” These sections plainly show 'a witness can not claim for attendance or mileage unless he has been compelled to attend, under the command of a subpoena or the obligation of a recognizance. Hutchins v. The State, 8 Mo. 288.

It is urged by respondent that an appeal does not lie in this cause, and many authorities are cited clearly showing that a judgment for costs is not a final judgment from which an appeal can be taken. In each of these cases there was no final judgment. Only and simply a judgment for costs. In this case, however, the cause had been tried and a proper final judgment entered, and this is an after proceeding, the cause of which (taxing the costs) did not occur till after the trial. This case is distinguishable from those cited by respondent, saying there was no appeal without a final judgment and that a judgment for costs was not such.

We think the last paragraph of the opinion in case of James & Ray, ex parte (59 Mo. 284), is applicable to this case.

The case of Shed v. Ry. Co. (67 Mo. 687), was an " appeal from a motion to re-tax costs. " And while there does not seem to be any point made against the right of appeal we nevertheless regard the case as a precedent.

The judgment is reversed and the cause is remanded.

All concur.