Guest v. Philadelphia Co. , 7 Pa. Super. 321 ( 1898 )

Opinion by

Beaver, J.,

In an action of trespass in which the plaintiff recovered judgment, the amount of the bill of costs was agreed upon by .the attorneys of the parties, the judgment paid and satisfied and the costs marked paid. With the record in this condition, a witness for the plaintiff filed his petition, praying for a rule upon the defendant to show cause why it should not pay the sum of forty-four dollars “ his witness fees, as a part of the costs recovered in the above entitled case.” The rule was granted and, upon a hearing, made absolute. The granting of the rule and the decree making the same absolute are assigned for error.

What standing had the petitioner in the court below ? He was not the. defendant’s witness. There was no contract oh the part of the defendant, express or implied, to pay him his .witness fees. His claim was against the plaintiff who had subpoenaed him and was doubtless liable to pay him whatever witness fees might be due him, which might have been recovered in an action of assumpsit. The judgment entered upon the 'verdict had been paid, the record satisfied and the costs marked paid. There was, therefore, nothing pending in the court below and the defendant was discharged from all liability by the entry of satisfaction, at least so long as the said entry remained unchallenged. With the record in this condition, it is difficult to see how the plaintiff himself could have been, under any circumstances, entitled to a rule such as was granted in this case. Certain it is that none of his witnesses could or ought to be allowed to intervene as a party interested, for .the purpose of enforcing the payment of his witness fees against the defendant however meritorious his claim might bé against the plaintiff. If one witness could do this, any number of them might do likewise and the result would be endless confusion and annoyance to both courts and parties. As was said in Prescott v. Otterstatter, 85 Pa. 534: “ Such difficulties can be best avoided by recognizing and enforcing the right of each party to attend to his own affairs.” The attorneys of the parties, plaintiff and defendant, respectively having agreed as to the amount of the costs, it would seem that no regular taxation under the rule of court was necessary. Their agreement upon the subject seems to us to have avoided the necessity for and been equivalent to a regular taxation.

It is not necessary for us to determine, as the case stands, whether the petitioner, Kier, was entitled to a surveyor’s fees under the act of April 7, 1870 (P. L. 1030) relating to Allegheny county, or those of an ordinary witness, nor is it necessary for us to intimate what might have been, if the plaintiff had presented his petition for a rule to show cause why the satisfaction of the record should not be stricken off and a relaxation of costs allowed.

As the case stands, the petitioner had no rights which could be enforced in the manner in which he sought to enforce them and, the record of the case being entirely closed by the satisfaction thereof, there was nothing upon which a rule such as this could rest, even upon the petition of the plaintiff in the suit.

The decree of the court below is reversed and the rule to show cause, etc., discharged.