
    IN THE MATTER OF F. M. WAKEFIELD AND W. S. WISE, Attorneys-at-Law.
    Taxation ok Costs.
    Submitted September 20, 1897.
    Decided September 30, 1897.
    Judd, O.J., Erear and Whiting, JJ.
   OPINION OF THE COURT BY

WHITING, J.

The costs claimed by the Attorney-General, to be taxed to the defendants, are as follows:

1. Costs of Court, per Clerk’s account. . $ 26 00

2. Stenographer’s fee............... 25 50

3. July 30, 1897, mileage of witnesses L. A. Andrews and G. W. A. Hapai, Hilo to Honolulu and return, $25 each........................$ 50 00 Attendance, 3 days each, at $1. .. . 6 00 56 00

4. Aug. 20, 1897, mileage of G. W. A. Hapai, L. A. Andrews, O. Eumeaux, S. C. Mace and A. B. Loebenstein, Hilo to Honolulu and return, $25 each ........................$ 125 00

Attendance, 5 witnesses, 3 days each at $1 ..................'...... 15 00 ■ 140 00

5. Traveling fees of officers from Hilo to Honokaa and return, to serve summons on W. S. Wise 100 miles, at 10c ....................... 10 00

$ 257 50

Item 1 is admitted by counsel for defendants, and so taxed, $26.00.

Item 2. The services of stenographer (the regular paid stenographer being engaged in another court) in this case, are expenses of Court, and accordingly are not chargeable to the defendants. Disallowed.

Item 4 is not disputed by defendants as proper costs, and accordingly is taxed to them, $140.00.

Item 3. These two witnesses were summoned to appear and did appear in Court on the return day of the complaint. No answer to the complaint was filed until the return day, when the respondents interposed a motion to dismiss and also a demurrer which the Court refused and overruled. No intimation was given by respondents as to the course proposed by them to be pursued prior to the return day. The hearing on the merits was had at a later day. Eespondents claim that the practice in equity cases should govern as in the cases of Ohera v. Ackerman, 9 Haw. 597, and Barthrop v. Kona Coffee Co., 10 Haw. 402, and that therefore the witnesses ought not to have been subpoenaed, and the costs in this item ought not to be taxed against defendants. But the practice in these cases has been, that the return day is the day of hearing, as the proceedings are of a summary nature under Section 1066 of the Civil Code (Comp. L., p. 312) which provides that practitioners shall be summarily amenable to the courts of record, etc. The witnesses were properly subpoenaed, and in attendance, and their costs are properly taxable to the defendants.

Item 5 is taxable to the defendants. Section 1280 of the Civil Code (Comp. L., pp., 416, 417 and 418) provides for costs in the Supreme and Circuit Courts: Marshal’s or sheriff’s fees —for serving a summons or any other process (except a subpoena) one dollar for each party served; for all necessary travel in making such service, ten cents per mile for every mile more than one. The defendant Wise was a resident of Hilo and had his law office there and was temporarily absent in Honokaa attending a term of the Circuit Court, and the time of his return to Hilo was uncertain. It was of importance and very material that the summons be served upon him at an early period before the return day, and it appears to us that the expense of the travel from Hilo to make such service was necessary in this instance.

Attorney-General W. O. Smith, for bill of costs.

A. S. Hartioell and P. Neumann, contra.

Costs are taxed against the defendants, as follows:

Item 1. Clerk’s costs of Court.................$ 26 00

Item 3. Mileage and attendance, 2 witnesses..... 56 00

Item 4. Mileage and attendance, 5 witnesses...... 140 00

Item 5. Traveling fees in service of summons..... 10 00

Total ...............................$ 232 00  