Opinion
No. 1907.
Filed October 28, 1929.
Decided November 1, 1929.
PETITION FOR REHEARING.
PERRY, C.J., BANKS AND PARSONS, JJ.
W.F. Crockett and Wendell F. Crockett for the petitioner.
Construing section 2549, R.L. 1925, as amended by Act 24, L. 1925, it was held in the original opinion ( ante p. 147) that the pay of witnesses who were subpoenaed but did not testify because of a discontinuance is not taxable as costs. The appellee now moves for a rehearing on the ground that, "under the provisions of section 2542, R.L. Hawaii, 1925, the respondent should be reimbursed for the amount actually and necessarily expended in obtaining the attendance of witnesses in preparing for trial, even though she is not entitled to the full amount allowed by the provisions of section 2549, R.L. Hawaii, 1925, as amended by Act 24, S.L. 1925." The language of section 2549 is clear. The fees of witnesses there referred to, which are declared to be "taxable items in the bill of costs to be paid by the losing party," are those only of witnesses who have attended and testified. The enumeration of one excludes all others. It is as though that section contained an express prohibition that the fees of witnesses who have not testified shall not be taxable items in the bill of costs to be paid by the losing party. In the face of this prohibition resort cannot be had to section 2542 which authorizes the taxation as attorney's fees of "all actual disbursements sworn to by an attorney and deemed reasonable by the taxing officer." The limitation placed by the legislature upon the witness fees which are taxable as costs must be respected.
The petition is denied, without argument, under the rule.