Jones v. Schlender

BAKES, Chief Justice.

This case originated in the Small Claims Division of Magistrate Court resulting in a judgment for plaintiff. Defendant appealed to the district court where, after a trial de novo, judgment was also rendered in favor of plaintiff. Defendant appeals that judgment to this Court.

The transcript of the trial before the district court consists of the testimony of the plaintiff Robert Jones, both on direct and cross-examinations. Plaintiff testified: that he was served with a subpoena issued out of the United States District Court, the subpoena being served by the defendant’s secretary; that he advised defendant’s secretary that he would not appear unless he was paid his attendance fee and travel allowance in advance; that he was told that he would be paid; that a few days later the defendant’s secretary telephoned plaintiff and informed him that if he failed to appear he “could be found in contempt of court, and [he] would be paid after appearing”; that plaintiff reiterated that he would not appear unless he was paid prior to the trial; that plaintiff subsequently consulted informally with an attorney friend who advised him that he ought to appear as provided in the subpoena; and that he did decide to appear, but did not advise the secretary.

The parties have stipulated that plaintiff did in fact appear at the United States District Court in Boise on the day set out in the subpoena. Unknown to plaintiff, however, the case had been settled. It is also agreed that defendant made no attempt to notify plaintiff that the case in federal court had been settled, thereby making his attendance no longer necessary.

Based upon the foregoing facts, the district court concluded that plaintiff was entitled to be compensated by defendant appellant in the amount provided for by the federal statutes and rules.¹ The court entered a judgment in the sum of $110.60, including costs and interest. Neither party questions the correctness of the amount.

Defendant’s appeal raises essentially two issues: first, whether the state court had jurisdiction to award judgment for witness fees arising from a federal proceeding, and secondly, that if the state court had jurisdiction to enter such a judgment, only the chent, not the lawyer, is liable for those costs.²

There is a paucity of authority on remedies of a person whose fees are not paid by the party subpoenaing him or calling him as a witness. There is no question that the entitlement of those fees is established by federal law, and the trial court so held. 28 U.S.C. § 1821(a)(1) provides as follows:

“Except as otherwise provided by law, a witness in attendance at any court of the United States, or before a United States Magistrate, .. . shall be paid the fees and allowances provided by this section.”

Witnesses who are not paid, or are paid an inadequate amount for their services, have an action for the witness fees to which they are entitled by law. See Hurtado v. United States, 410 U.S. 578, 93 S.Ct. 1157, 35 L.Ed.2d 508 (1973), rehearing denied 411 U.S. 978, 93 S.Ct. 2151, 36 L.Ed.2d 701 (1973); Vincennes Steel Corp. v. Miller, 94 F.2d 347 (5th Cir. 1938).

As a general rule, rights created by federal law are enforceable by the state courts in the absence of federal legislation creating exclusive jurisdiction in the federal courts, or a federal legislative pattern which by necessary implication is so pervasive as to preclude jurisdiction in the state courts. See United States v. Bank of New York & Trust Co., 296 U.S. 463, 56 S.Ct. 343, 80 L.Ed. 331 (1936); Lockridge v. Amalgamated Ass’n of State Elec. Ry. & Motor Coach Employees of America, 84 Idaho 201, 369 P.2d 1006 (1962); McCormick v. Smith, 23 Idaho 487, 130 P. 999 (1913); see generally 1 Moore’s Federal Practice § 0.6[3], at p. 240 (2d ed. 1980). We find no such preclusion in this case and conclude that witnesses subpoenaed in federal court proceedings may sue in the courts of the State of Idaho to recover witness fees to which federal law declares them entitled.

The more difficult question is whether or not plaintiff has a claim in this case against the attorney for the litigant, rather than the litigant himself. Ordinarily, an agent is not personally liable on a contract made for a disclosed principal. Benner v. Farm Bureau Mutual Ins. Co. of Idaho, Inc., 96 Idaho 311, 528 P.2d 193 (1974). We note that the defendant appellant Schlender himself at no time engaged in any of the negotiations or discussions involved in this matter, all such discussions having occurred between plaintiff and defendant’s secretary. Nevertheless, defendant acknowledges his responsibility for the conduct of his secretary, and therefore we must examine this transaction to determine whether or not that conduct could impose personal liability upon the defendant even though he was acting for his client.

At the time that defendant’s secretary served the subpoena upon the plaintiff, plaintiff demanded the fees in advance, and was told that a check would be forwarded. Two or three days later, plaintiff received a call from defendant’s secretary who stated that the fees would be paid at the time of hearing. At that point, the record is clear that defendant’s secretary stated to plaintiff that if he did not appear he “could be found in contempt of court . . . . ” This is an incorrect statement of the federal law. Unless fees are tendered to the witness at the time the subpoena is served in a civil action, service is improper.³ See Saper v. Hague, 186 F.2d 592 (2d Cir. 1951); see generally 5A Moore’s Federal Practice § 45.02[2], at p. 45-37 (2d ed. 1980). An improperly served subpoena provides a witness with a valid defense in a contempt proceeding. See Doble v. United States District Court, 249 F.2d 734 (9th Cir. 1957); Application of Johnson & Johnson, 59 F.R.D. 174 (D.Del.1973). Faced with the advice that he could be held in contempt, and after consulting informally with an attorney who advised him that he should appear in response to the subpoena, plaintiff traveled to Boise to the United States District Court in compliance with the subpoena.

Under these circumstances, we affirm the trial court’s conclusion that an obligation arose between appellant and respondent, enforceable in the state courts, requiring the defendant appellant to pay the fees provided by federal law to the respondent. Accord, Peavey v. Pellandini, 97 Idaho 655, 551 P.2d 610 (1976); Hixon v. Allphin, 76 Idaho 327, 281 P.2d 1042 (1955); McShane v. Quillin, 47 Idaho 542, 277 P. 554 (1929).

The judgment of the district court is affirmed. Costs to respondent.

McFADDEN and DONALDSON, JJ., concur.

1 . 28 U.S.C. § 1821(b) provides, in part: “A witness shall be paid an attendance fee of $30 per day for each day’s attendance.” 28 U.S. C. § 1821(c)(2) provides that “a travel allowance equal to the mileage allowance [prescribed by the Administrator of General Services, pursuant to 5 U.S.C. § 5704] ..., shall be paid to each witness who travels by privately owned vehicle.” The district court determined that the mileage allowance in force on the date plaintiff respondent appeared in United States District Court was 20 cents per mile.

2 . The record discloses that the defendant appellant offered respondent $30 or $40 as a settlement and to alleviate any hard feelings, but respondent rejected the offer.

3 . F.R.C.P. 45(c), 28 U.S.C., governs the manner in which a subpoena issued by a federal court shall be served. In regard to attendance fees, it states: “Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and by tendering to him the fees for one day’s attendanee and the mileage allowed by law.” (Emphasis added.) The federal cases are divided on the effect of failure to respond to a subpoena which is improperly served or served without tender of fees. Compare Doble v. United States District Court, 249 F.2d 734 (9th Cir. 1957) (if service of subpoena is without force and void, witness may disregard it), and Saper v. Hague, supra (witness may ignore improper service), with Haney v. Woodward & Lothrop, Inc., 330 F.2d 940 (4th Cir. 1964) (witness is not at liberty to ignore power of subpoena) and Ghandi v. Police Dept. of City of Detroit, 74 F.R.D. 115 (D.Mich.1977) (having failed to file motion to quash for improper service, witness must honor subpoena).