Witty v. Pluid

NO. 85-431
IN THE SUPREPE COURT OF THE STATE OF MONTANA
1986
HAROLDEEN WITTY,
Plaintiff and Respondent,
VS.
HARRELL W. PLUID,JR., and
LYLE PLUID,
Defendants and Appellants.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In a-nd for the County of Lincoln,
Honorable Robert M. Holter, Judge Presiding.
COUNSEL OF RECORD:
For Appellant:
Murphy, R.obinson, Heckathorn C Phillips, I. James
Heckathorn, Kalispell, Montana
For Respondent:
Measure, Ogle & Ellingson, Jeffrey D. Ellingson,
Kalispell, Montana
Submitted on Briefs: Dec. 18, 1985
Decided: February 20, 1986
Filed: FLB ;? i, 1986
-
Clerk
Mr. Justice F2illiam E. Hunt, Sr. , delivered the Opinion of
the Court.
Appellants appeal from the judgment of the Lincoln
County District Court ordering appellants to pay respondent's
expert witness fees.
We reverse.
The sole issue on appeal is whether the order of the
District Court directing appellants to pay respondent's
expert witness fees is proper.
Respondent brought an action in the District Court and,
after a jury trial, prevailed on the merits. Respondent then
submitted to the trial court her memorandum of costs a.nd
disbursements.
The appellants objected, moved to strike the cost bill
as frivolous, moved the court to tax costs in accordance with
5 25-10-502, MCA, and impose sanctions pursuant to Rule 11,
M.R.Civ.P. Following submission of briefs and. a hearin.g, the
trial court issued its order allowing respondent her costs
for expert witnesses. The court awarded costs for four
expert witnesses in the amount of $1,000, $1,700, $500, and
$410. This appeal followed.
We have addressed this issue before in Swenson v.
Buffalo Building Co. (Mont. 1981.1, 635 P.2d 978, 38 St.Rep.
1588. In Buffalo, the appellant appealed the trial court's
allowance of $1,500 for expert witness fees. We stated:
A verified memorandum of costs and disbursements is
prima facie evidence that the items were
necessarily expended and are properly taxable,
unless, as a matter of law, they appear otherwise
on the face. The burden of overcoming this prima
facie case rests upon the adverse party.
635 P.2d at 985. In the instant case, respondent's costs for
expert witnesses are not properly taxable as a matter of law.
Witness fees are controlled by statute. Section
26-2-501, MCA, states:
Witnesses in courts of record - before certain
and
court officers. (1) W i t n e s s fees are as follows:
(a) for attending in any civil or criminal action
or proceeding before any court of record, referee,
or officer authorized to take depositions or
commissioners to assess da.mages or otherwise, for
each day, $10; ...
Section 26-2-505 states:
Expert witnesses. An expert is a witness and
receives the same compensation as a witness.
The respondent argues that 5 25-10-201, MCA, gives a
district court the discretion to award costs for expert
witnesses. That section states:
Costs generally allowable. A party to whom costs
are awarded in an action is entitled to include in
his bill of costs his necessary disbursements, as
follows:
... (9) such other reasonable and. necessary
expenses as are taxable according to the course and
practice of the court or by express provision of
law.
Where there are two statutes concerning the same
subject, the particular controls the general. Section
1-3-225, MCA. - - State Consumer Counsel v. Department
See also
of Public Service Regulation (1979), 181 Mont. 225, 593 P.2d
In this case, we have a statute specifically limiting
expert witness fees to $10 per day. This statute controls
the general statute authorizing a district court to award
costs in accordance with the course and practice of the
court.
Of course, a party can pay an expert witness any fee he
or she chooses, but a district court cannot award costs in
excess of $10 per day per witness.
Therefore, we hold that the trial court abused its
discretion in ordering appellants to pay the costs of
respondent's expert witnesses in excess of $10 per day per
witness. This matter is remanded to the District Court with
instructions to enter judgment in accordance with this
opinion.
We Concur:
/
Chief Justice
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