Nead v. Millersburg Home Water Co.

79 F. 129, 1897 U.S. App. LEXIS 2542

Opinion

DALLAS, Circuit Judge

(after stating the facts). Respecting the cost of the depositions, inasmuch as they were taken in good faith by the defendant in the preparation of the ease for trial, and were not waived at the trial, but their use was prevented by reason of the production of the witnesses under a writ of habeas corpus ad testificandum, issued by order of the court, the defendant cannot justly be precluded from having this item of cost taxed and allowed, and the plaintiff’s exceptions are dismissed.

As to the witness fees and mileage charged for the president of the defendant corporation, it is admitted that, if he had been the party defendant, such costs would not be taxable. But a corporation is an entity distinct from its officers. The practice of the state courts, as abundantly shown by the authorities cited by the defendant, is to allow and tax as costs the witness fees and mileage for the officers of corporations, where, as here, they attend as witnesses, and not as representatives of the corporation, I find no authority showing any settled practice upon this point in the federal courts of this district, but am of opinion that the defendant’s exceptions must be sustained.