Wylie v. Duffy

1 Ohio N.P. (n.s.) 353, 14 Ohio Dec. 280, 1903 Ohio Misc. LEXIS 105

• Court: Court of Common Pleas of Ohio, Franklin County, Civil Division
• Decided: December 22, 1903
• Status: Published

Opinion

Dillon, J.

The facts are that -one Gertrude Stauffer, a witness residing at Dayton, Ohio, was notified by tbe plaintiff that she was in good faith wanted to testify in this case, and that a subpcena would be served on her arrival here; that to facilitate justice and prevent delay she voluntarily came to Columbus, a distance of about seventy miles, and was served with a subpoena in the court house. Subsequently there was taxed in her favor the usual mileage of five cents per mile each way.

By this motion of the defendant it is sought to re-tax the costs and strike out the allowance of $7 mileage.

It is provided by Section 1301 that in civil cases a -witness shall be -allowed for each day’s attendance the sum of $1 and five cents per mile from his place of residence to the place of holding court and returning therefrom.

By Section 1303 it is provided that all persons called upon to testify in.a cause in which they are not summoned shall receive the sum of twenty-five cents.

By Section 5250 the jurisdiction and power of the common pleas court to compel the attendance of witnesses in civil cases (with certain exceptions with which we are not concerned here) is limited to the county in which the witness resides and to any adjoining county. Therefore in this case, 'as the witness resided beyond these limits, she could not have been compelled to come by subpoena.

It follows therefore that depositions must be used as to witnesses residing beyond an adjoining county who do not voluntarily come to the place of trial, and' that if no subpoena be issued at all every voluntary witness shall receive but twenty-five cents.

It is the evident intent and wise provision of the statute to limit the amount of fees' to be 'allowed in civil oases of his land. Two propositions, I think, irresistaibly follow the consideration of the statutes.

1st. That a witness residing in the county of the suit or in an adjoining county who is, in proper emergency, immediately notified to report as a witness at the trial, to be subpoenaed upon arrival and in good faith to facilitate justice and prevent delay, does so report and is subpoenaed upon arrival, is entitled to statutory mileage of five cents per mile each way from his residence.

2d. But, there being no jurisdiction to compel attendance beyond these limits, a witness so residing who so reports voluntarily for trial and is there subpoenaed, is entitled to one dollar and no more.

The argument that such a witness should be allowed at least the mileage as to a resident of the farther limits of the adjoining county, can not be supported by the law, nor by the reasons and objects of the statutes which bar all the world from mileage except those resident of certain coniines.

The motion to re-tax costs is sustained accordingly.