Chicago & Aurora Railroad v. Dunning

18 Ill. 494

• Court: Illinois Supreme Court
• Decided: April 15, 1857
• Status: Published

Opinion

Caton, J.

Properly, a subpoena should be directed to the witness" and not to the sheriff, as is generally the case with process issued out of a court, and the witness is bound to obey it, whenever it comes to his hands ; no matter by what means. It may be served upon him by the sheriff, or the party, or any private person, or may be even sent by mail, and as the command is to the witness he is bound to obey it, whenever he receives that command. When the subpoena is served by the sheriff, the statute allows him fees, but none are allowed to the party or other private person by the statute, and, consequently, no fees are collectable as costs; for it is only by force of the statute, that any costs can be collected by the successful of the unsuccessful party. The sheriff may, no doubt, make a deputy to serve a subpoena as well as other process, for whose services he is entitled to fees, the same as if he had done the service in person. Here Dunning was not a deputy sheriff, nor indeed could he be, for the purpose of serving these subpoenas, for he was a party to the action, and no one can act as sheriff or deputy sheriff’ in his own cause. Even if the sheriff himself should serve a subpoena in his own cause, he would have to do it in his individual and not in his official capacity; and would not be entitled to fees for such service. The court erred in approving the taxation of costs by the clerk, for the service of the subpoenas by the party.

The judgment must be reversed and a retaxation of costs ordered.

Judgment reversed.