Slama v. Chicago, St. Paul, Minneapolis & Omaha Ry. Co.

58 N.W. 989, 57 Minn. 167, 1894 Minn. LEXIS 250

Opinion

Mitchell, J.

It was held in Barry v. McGrade, 14 Minn. 286, (Gil. 214,) that in an action of tort against several defendants where the defendants, who prevail, rely upon the same defense, unite in the same answer, appear by the same attorney, and there is but one trial as to all, they are entitled jointly, and not severally, to statutory costs.

The converse of this is equally true, viz. that where the several defendants in good faith interpose separate defenses by separate answers, and appear by different attorneys, each is entitled, on a recovery in his favor, to a separate bill of costs.

We think the taxation of witness fees should be affirmed for substantially the reason given by the trial judge in his memorandum. The affidavits showed that the attendance of these witnesses had been obtained in good faith, with the expectation that their testimony would become material on the trial. Why they were not called was satisfactorily explained by the fact that the action was dismissed when the plaintiff rested. We think defendants’ affidavits made a sufficient showing of the materiality of the witnesses, in the absence of any showing to the contrary by the plaintiff, or of anything in the case raising a suspicion that they were called unnecessarily, or for the purpose of swelling the bill of costs.

Order affirmed.

Buck, J., absent, sick, took no part.

(Opinion published 58 N. W. 989.)