United States v. Small

Mr. Chief Justice Jones

delivered the opinion of the court.

We cannot consider the sufficiency of the complaint, in this action; a trial has been had and judgment entered, and the pleading cannot be attacked on this appeal, as no objection thereto is reserved, and it is sufficient to support the judgment.

The contention here is as to whether the United States has a right to tax costs under the act of congress or under the territorial statute.

We have no doubt the national act must prevail. The territorial act cannot repeal the federal statutes, and the fees thereby allowed must be taxed when the United States is the prevailing party. Marshals, clerks, jurors, and witnesses have a right to demand and receive, pay under that statute, and their fees are necessary disbursements in the action.

It is contended that, under the national law, witness fees for mileage cannot be allowed for a greater distance than one hundred miles. This would be true if the witness came from without the “district” over which the court has jurisdiction, and there are authorities so holding, the word “district” being used with reference to the territorial limits of a district court in one of the states of the Union.

The rule in the district courts of the United States does not seem to be uniform, but we think that within the jurisdiction of the court, so far as determined by territorial boundaries, the witness may be compelled to attend without regard to distance, and his compensation ought to be taxed and allowed. If he comes from without the district, the one-hundred-mile limitation applies.

The process and jurisdiction of the courts of this territory are co-extensive with the territorial limits, and fees should be allowed to witnesses accordingly.

The court below taxed and allowed costs under the statute of the territory. The cause will be remanded, with instructions to allow them as indicated in this opinion, the costs of this court to be taxed against the defendant below.

Turner, J., and Allyn, J., concurred.