
    James R. Calloway v. John B. Todd.
    Attachment for Contempt.
    A witness duly subpoenaed may be attached and punished for contempt of court for failing to obey the subpoena, but cannot be so attached and punished where he fails to keep his promise to one of the parties to attend, when he has not been subpoenaed.
    
      Waiver of Mileage Fees.
    Where a witness is subpoenaed, he may waive the payment of mileage and expenses, when be otherwise would be entitled to them, and where he does so and fails to obey the subpoena he may be attached and punished for contempt, notwithstanding no fees have been tendered to him.
    APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.
    
      D. M. Rodman, for appellant.
    
    
      W. P. Thorne, Russell & Helm, for appellee.
    
    January 16, 1879.
   Opinion by

Judge Cofer :

Attachments are awarded against witnesses on the ground that they are in contempt of the authority of the court in failing to appear when legally summoned. But a witness is not in contempt of the court simply because he has not kept his promise to one of the parties to be present and testify.

No doubt a witness legally summoned may waive the payment of mileage and expenses, and by doing so may subject himself to attachment for failing to appear in obedience to the subpoena. In that case it would be his duty to attend unless excused by the default of the party who caused him to be summoned, but he could not, after waiving the payment of his mileage, etc., set up the failure to pay as an excuse for his disobedience.

Nor is this at all technical. It is the plain legal duty of a litigant to take the appropriate legal steps to produce his evidence in court, and he has no right to rely upon means not provided by law and to depend upon the promise of his witnesses and neglect the legal method; and then, when his witness has disappointed him, to throw the consequences of his own default upon his adversary by subjecting him to the expense, inconvenience and delay rendered necessary by his own reliance upon his witness, in preference to relying upon the law to secure the attendance of the witness.

Petition overruled.  