Opinion
March 13, 1902.
May 19, 1902.
Present: HOLMES, C.J., KNOWLTON, MORTON, HAMMOND, LORING, JJ.
When a case is in order for trial with a prospect that it will be reached speedily, and a person who may be wanted as a witness actually attends at a place in close proximity to the court house, with the purpose and expectation of going thence if necessary to the court house to be present at the trial of the case as a witness, and is then suffered to depart for the rest of the day, he fairly may be said to have attended as a witness on that day, and a witness fee for his attendance may be taxed.
C.J. Noyes, for Wright.
J. Bennett, for Reid.
These two cases were argued together. The question relates in each case to the taxation of fees for two witnesses in favor of Reid who was the prevailing party in both cases. The fees were taxed by the clerk and Wright appealed and the taxation was affirmed by the judge. The cases are here on exceptions by Wright to the refusal of the judge to rule as requested that the "witnesses were only entitled to fees for attendance when they were actually in court or for which they had been paid; the witness Charles to four days, the witness Holmes for three days." Charles and Holmes were the two witnesses whose fees were objected to.
It appeared that the cases were on the short list a greater number of days than were certified to by the witnesses. Charles was in actual attendance in the court room four days in answer to summonses. On the other days certified to by him he went to Reid's office on Court Street and ascertained from Reid or Reid's stenographer that he would not be wanted and went about his business without going to the court. To go to Reid's office he had to leave his business and go some distance away from it but he attended to his business afterward. He was paid $7 in cash in each case on a separate summons and had Reid's promise to pay him for the rest of the time at the same rate. "Holmes actually attended court on summonses four days and remained in the corridors four days, and one day went to Reid's office and was excused by him." There is nothing to show that there was any oppression or reckless expense or that in procuring the attendance of the witnesses Reid did not act in good faith. The objection is, in substance, that the witnesses did not attend unless they were actually in court during the number of days certified to.
In considering what shall constitute attendance by a witness the fact that persons who are or may be wanted as witnesses generally are engaged in business or occupations of their own should be taken into account and reasonable regard paid to it. If the witness Charles had gone to the court room and had then been excused for the rest of the day by Reid or by Reid's direction we cannot doubt that that would have constituted attendance as a witness on his part for that day. It is immaterial it seems to us that instead of going to the court room he went to Reid's office in close proximity to the court house. There is no statute that requires that a witness should attend all day in order to be entitled to his fee. Any attendance is a day's attendance. There is no such thing as a fraction of a day in the attendance of a witness. And we think that when a case is in order for trial with a prospect that it will be reached speedily and a person who may be wanted as a witness actually attends at a place in close proximity to the court house with the purpose and expectation of going thence if necessary to the court room to be present at the trial of the case as a witness, that he fairly and reasonably may be said to attend as a witness in the case, and that it is immaterial that, after having so attended, he is suffered to depart for the rest of that day. These were or might have been found by the presiding justice to be the facts here. See Miller v. Lyon, 6 Allen, 514.
Exceptions overruled.