Feltt v. Davis ( 1876 )

The opinion of the court was delivered by

Ross, J.

The demurrer reaches the first defect in the pleadings. While admitting that his plea may be defective, the defendant insists that the declaration does not disclose a cause of action, and hence his plea is a sufficient answer to it. The action, so far as it can be characterized by the facts stated in the declaration, is an action on the case, sounding in tort. To entitle the plaintiffs to recover, they must show that the acts set forth in the declaration, as to them, were tortious, and occasioned them damage. The defendant had a legal right to cite the plaintiffs to appear at Moretown, to be present at the taking of his deposition. They were under no legal obligation to obey the citation. If they did so, it was from voluntary choice, and not because the defendant compelled them to that service. It might or might not be for their pecuniary interest to comply with the invitation that he extended to them. If they accepted, and were present at the time and place appointed, the defendant was under no legal obligation to have his deposition taken ; and the law has prescribed no penalty for his neglect to have it taken. If the defendant had been present, and given his deposition, the plaintiffs’ journey might have been equally onerous in expense, and alike fruitless of beneficial results, as the defendant was neither bound to file nor use the deposition, when taken; nor could the plaintiffs compel him to do either, nor avail themselves in any way of the deposition without the defendant’s consent. No costs are by law taxable on behalf of the plaintiffs for their expenses, or travel and attendance, in obedience to the citation. It is difficult to conceive what the plaintiffs could have gained pecuniarily by the taking of the deposition, or what they have lost by the failure to give the deposition, which they.would not have lost if the deposition had been taken. When costs are taxable to a party for attendance upon a proceeding in a suit, they are the only damages recoverable, unless the other party made use of the process and proceedings without probable cause, maliciously. The declaration contains no averment of malice and want of probable cause. The inference is, that the defendant had probable cause for issuing the .citation, inasmuch as the testimony of the party to a suit, in some form, is usually necessary. The gist of the plaintiffs’ complaint is, the issue of the citation, and failure of the defendant to be present and give his deposition. The issue of the citation, so far as regards the allegations in the declaration, was lawful, and the failure of the defendant to be present and give his deposition, not unlawful. The travel and expenses incurred by the plaintiffs in attending at Moretown, could not in any event have been taxed against, Dor recovered of, the defendant in the suit in which the deposition was to have been taken. We conclude, therefore, that the declaration fails to disclose a cause of action, in that it does not aver that the citation was issued without probable cause and maliciously ; and that the damages therein set forth, without the allegations of want of probable cause and malice, are absque injuria as regards the plaintiffs, as in no event were they taxable or recoverable in the suit in which the deposition was to have been taken. In the latter particular, the case at bar is clearly distinguishable from Mann v. Holbrook, 20 Vt. 523, relied upon by the plaintiffs. The defendant in that case had, by the issue and service of the writ, not only invited the plaintiff to a controversy, but had brought him within the jurisdiction of the court in which the plaintiff had the right to have the matters alleged against him adjudicated and forever put to rest in his favor, and to recovér the costs by law allowed. We do not regard that case as an authority for the case at bar; nor has any such authority been brought to our attention; nor are we able to. bring the case within any well-settled and known principles of the law.

Judgment affirmed.