American National Bank v. Cooper

Idaho Supreme Court

American National Bank v. Cooper

256 P. 372, 44 Idaho 288, 1927 Ida. LEXIS 89

CourtIdaho Supreme Court

DecidedMay 14, 1927

DocketNo. 4694.

StatusPublished

This text of 256 P. 372 (American National Bank v. Cooper) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

American National Bank v. Cooper, 256 P. 372, 44 Idaho 288, 1927 Ida. LEXIS 89 (Idaho 1927).

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Opinion

WM. E. LEE, C. J.

A default judgment having been entered against respondent Larson, as garnishee, in the action by appellant against the defendant Cooper, on her motion, the court set aside the former judgment, entered judgment in favor of the garnishee and allowed her costs in the sum of $166. This appeal is from the order taxing costs.

It is contended that the item of $160 allowed for mileage was not “necessarily incurred” by respondent’s husband as a witness and should not have been included as taxable costs within the purview of C. S., sec. 7218. It was shown that respondent and her husband arrived in Idaho Falls previous to the filing of the motion to set aside the judgment, and, at the time of their arrival, there was no proceeding pending which necessitated his presence as a witness. A subpoena could not properly have been issued, requiring his attendance as a witness, at the time of his arrival. These facts and circumstances together conclusively establish that the travel was not undertaken by the husband in reasonable contemplation of being a witness in this cause. The trial court erred in allowing mileage of more than one mile for this witness as taxable costs. (Crawford v. Abraham, 2 Or. 163.)

*290 The order of the trial court is modified by deducting therefrom the sum of $159.75, and, as so modified, is affirmed. Costs to appellant.

Givens, Taylor and T. Bailey Lee, JJ., concur.

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WM. E. LEE, C. J.

A default judgment having been entered against respondent Larson, as garnishee, in the action by appellant against the defendant Cooper, on her motion, the court set aside the former judgment, entered judgment in favor of the garnishee and allowed her costs in the sum of $166. This appeal is from the order taxing costs.

It is contended that the item of $160 allowed for mileage was not “necessarily incurred” by respondent’s husband as a witness and should not have been included as taxable costs within the purview of C. S., sec. 7218. It was shown that respondent and her husband arrived in Idaho Falls previous to the filing of the motion to set aside the judgment, and, at the time of their arrival, there was no proceeding pending which necessitated his presence as a witness. A subpoena could not properly have been issued, requiring his attendance as a witness, at the time of his arrival. These facts and circumstances together conclusively establish that the travel was not undertaken by the husband in reasonable contemplation of being a witness in this cause. The trial court erred in allowing mileage of more than one mile for this witness as taxable costs. (Crawford v. Abraham, 2 Or. 163.)

*290 The order of the trial court is modified by deducting therefrom the sum of $159.75, and, as so modified, is affirmed. Costs to appellant.

Givens, Taylor and T. Bailey Lee, JJ., concur.

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Bluebook (online)

256 P. 372, 44 Idaho 288, 1927 Ida. LEXIS 89, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-national-bank-v-cooper-idaho-1927.

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