Flisher v. Allen

Per, Curiam:

The eighth assignment of error is aimed at the rule of the court below, adopted March 8, 1889. It alleges that said rule is contrary to law. It may be conceded that if it denies the plaintiff’s right to costs, it is not only unreasonable, but unlawful. We fail to see, however, that it denies such right. It is a rule of practice merely, and was evidently intended to prescribe the mode of ascertaining the amount of the costs due the successful party. The power of the Court of Common Pleas to adopt rules of practice, is too well settled to be now questioned. The only limitation of the power is that they must not be contrary to law, nor unreasonable. The rule in question refers only to the fees of witnesses, and provides that, when a cause is continued or tried, the bill of costs for attendance of witnesses must be filed and served upon the opposite party within four days, etc. The obvious purpose of this is to prevent imposition upon the losing party, by the filing of large bills of costs for witnesses who may have left the jurisdiction or be difficult to find. The fact that the rule was adopted by the twelve judges composing the courts of Common Pleas of Philadelphia, and has now been in force for two years with but a single complaint against it, would indicate the necessity for the rule and that its working has been reasonably satisfactory. It is true a party may lose his costs by a neglect to comply with it. In such case, however, it is his own fault. In like manner, a man may lose his right to a trial by jury by not filing an affidavit of defence; a duly qualified elector may lose his right to vote by not making the necessary proof of such right when it is challenged. In these and many other instances which might be stated, there is no denial of the right, but a regulation of its exercise.

The allegation that the rule is unreasonable, because, upon a continuance of a cause, it compels the parties to disclose the names of their witnesses, possesses little merit. Such disclosure furnishes no indication of the character of their testimony, and we cannot assume that it would lead to their being tampered with. A party who is so void of principle as to engage in such disreputable business is very likely to ascertain the names of the witnesses for the opposite party without the aid of this rule.

Judgment affirmed.