
    CHARGES FOR TAKING DEPOSITIONS OUTSIDE THE STATE
    Common Pleas Court of Crawford County.
    J. L. Smith v. Rufenacht Rubber Co.
    
    Decided, 1926.
    
      Depositions — Higher Fees for Taking Allowed in Other States — • Not Recoverable as Costs in Ohio — Sneh Costs will be Taxed under the Ohio Schedtde.
    
    Costs for the taking depositions out of Ohio for use in the state courts are controlled by the statutes of Ohio, fixing the amount to be charged for depositions taken within the state, and fees paid in excess of the amount permitted by the Ohio Statutes cannot be taxed as part of the costs of the case.
    O. W. Kennedy, for plaintiff.
    
      E. J. Myers, for defendant.
    
      
      Affirmed by the Court of Appeals.
      *The Court of Appeals of the Third Appellate District, affirmed the judgment based on the above opinion in the following per curiam opinion filed June 4, 1926.
      Warden, Crow and Hughes, JJ.
      . “Find no .error. Judgment affirmed at costs of plaintiff in, .error.
      “Costs are taxable only by legislative enactment. Section 11545 General Code is the only code provision • providing for the costs of depositions. In the absence of this Section plaintiff in error would not be entitled to have costs of depositions taxed.”
    
   Wright, J.

This matter was heard on the motion of the defendant to re-tax the costs in the case. The plaintiff had heretofore recovered a verdict against the defendant upon which judgment was rendered with costs. The defendant now claims that the cost of certain depositions taken in the case are excessive/ The record shows that depositions on behalf of the plaintiff were taken in the city of Chicago of sundry witnesses, and the cost of taking these depositions were taxed as part of the costs in the case. The amount so to be taxed appears to be excessive according to the schedule of fees provided for in taking depositions in Ohio, and the costs of the depositions apparently were taken according to the schedule of fees used in the city of Chicago or the state of Illinois. The plaintiff contends that the costs of these depositions were reasonable and were in accordance with the customary charges for similar services in the city of Chicago; that he should be allowed the amount so taxed as part of his costs in this case. The defendant contends that this court is without jurisdiction to tax a greater amount for services in taking a deposition than that allowed under the statutory law of the state of Ohio. The successful party in an action at law is entitled to his costs. This is so not by virtue of custom or in accordance with the common Law but in pursuance of the statute. Section 11624 specifically provides for this in general cases and other statutes make provisions for costs in certain other kinds of cases where there may be exceptions to the general statute. In the case of Farrier v. Cairn, 5 Ohio, p. 545, it is stated that costs are unknown, to the common law. They are only given by statute and may be changed, or entirely taken away, at the will of the legislature. Hence the matter of taxing costs is purely a statutory matter and we must look entirely to the statute for authority in taxing the various items of costs.

In regard to the taking of depositions there is no. statute which controls the amount of fees to be charged when depositions are to be taken out of the state. Section 11545 provides the various sums or fees which are allowed for taking depositions in this state, but nowhere do we find any reference or provisions as to the fees that are allowed for the taking of depositions out of the state to be used in the courts in the state.

There are but two cases so far as the court is able to ascertain and that have been cited by counsel bearing upon this question. The case of Isman v. Altenbrand, decided in the 111th Pac., at page 849. This is a case decided by the Supreme Court of Montana and in the syllabus of the case the court laid down this rule.

“In taxing costs, the amount of the notary fee for taking depositions in another state will not be computed according to the statutes of Montana, but a sum which is reasonable under the circumstances at the place the depositions were taken will be allowed.”

This is a case that was tried in the Montana court. Depositions had been taken in other states for use in a hearing of a case in the Montana court and the court held that the taking of such depositions a sum which would be reasonable under the circumstances would be allowed, and that the Montana law would not govern and fix the fees. In the body of the opinion the court say:

“The suggestion that the fees of the notary should be computed in accordance with the statutes of this state is without merit. It was his privilege to charge the plaintiff such sum as his services were reasonably worth, under the conditions existing at the time and place of rendering the same, and the sum so expended, if reasonable and necessary, was properly taxed as part of the costs.”

We find another case holding just to the contrary reported in N. W. Reporter, Vol. 51, page 170. This was a decision by the Supreme Court of Iowa. The court in this case holds as follows:

“Under the Code Section 3754, providing that costs for taking depositions must be paid in the first instance by the party for whom they are taken, be taxed against the failing party, and Section 3835 establishes the fee allowed the officer taking such deposition, the expense of depositions taken out of the state must be taxed at statutory rates, and not at the rate established in the state where they are taken.”

The fact that the statutes of Iowa provide that the person who is taking the depositions must first pay for them and then he is entitled to have them taxed as part of the costs, would in no way have any bearing upon the statute under which the amount of the fees was to be fixed. A person who takes depositions would be primarily liable for the costs of them to the party whom he may employ to take the depositions, and in this state the statutes provide that the officer before whom the deposition is taken, can withhold the deposition until he receives his statutory fees allowable to him for taking such depositions. So that in both these decisions, the one in Montana and the one in Iowa, we have a clear cut decision upon the question which arises in this case, uninfluenced by the statutes of the respective states. In the body of the opinion in this Iowa case the court say: •

“A notary taking depositions in another state may be said to be acting as a special officer of the court in this State which commissioned him. He must comply with the laws of this State as to the manner of taking depositions, and we think his compensation is limited to the statutory fee.”

In the case before us the depositions of the witnesses in behalf of the plaintiff taken in Chicago were in pursuance of the Ohio statute. The Ohio statute authorizes that depositions may be taken and designates the officer before whom they are to be taken. They are certified by the officer in accordance with the Ohio statutes, and addressed and forwarded to the court in this state in conformity to the law of Ohio where the deposition is to be used. Consequently the officer before whom they are taken must for the time being be considered as an officer of the state court in the matter of taking the depositions, and since there is no common law rule for taxing costs in Ohio, but all costs are fixed entirely by statutes and all fees of all officers are fixed by statute, it must naturally follow that the fees which the notary is to receive would be fixed in accordance with the statutes of Ohio. In the case of Deibold v. Cincinnati, 7 O. S., at page 237, it is held that:

“No officer whose compensation is regulated by fees can charge for a particular service, unless the law specifically gives him fees for that service. Fees are not allowed upon an implication.

In the Federal courts a somewhat different rule has been followed, in that the courts there allow the reasonable costs and expenses of taking depositions which are taxed as part of the costs. We think the rule in Ohio is well settled that there can be no costs but such as.are provided for by statute, and inasmuch as the notary who takes the depositions is presumed to be an officer of the state court he can be allowed only such fees as the statutes of this state provide for the taking of depositions. The amount of the costs of this deposition appearing to be higher than those allowed by the statutory law of this state, only the amount computed according to the statutes of Ohio will be taxed against the defendant company and the excess over and above that amount will be taxed against the plaintiff. The court finds that under the statutes the amount for writing depositions and certifying same at the rate of 25c per hundred words would come to $30.00, and various other items, such as witness fees, mileage, postage, issuing subpoenas, subpoenaing witnesses, in all amount to $36.56.  