
    [No. 1140.]
    THOMAS F. MEAGHER et al., Appellants, v. FERD. S. VAN ZANDT, Respondent.
    Fees oe Witnesses—Subpoena.—Fees for mileage or attendance of the opposite party’s witnessess cannot be taxed, and judgment therefor entered against the losing party, when such witnesses have not been subpoenaed in the case according to law, or sworn or examined, although present in court at the request of the successful party. (Hawléy, C. J., dissenting.)
    Appeal from the District Court of the Fifth Judicial District, Nye County.
    The opinion in this case does, not require a statement of the facts.
    
      D. ti. Truman, for Appellants :
    I. The court erred in not accepting, as evidence, the subpeena iu Harvey v. Van Zandt. It would have conclusively proved that the mileage fees paid was a necessazy disbursement in the Harvey case ; that the same had been paid in that action, and unless required to attend in this case by the process of the court issued in this action and duly served ozi the witnesses, the charge of such mileage fees was not a proper charge to make in this action. (2 Comp. Laws, 2742; 1 Greenl. on Ev. see. 51 a, note 5 and authorities there cited.)
    II. The law provides the method by which a witness may be required to attend court to testify; the statutes having provided a method, it is to the exclusion of other ways, except a voluntary attendance; and the method is by subpoenaing a party in the action in which he is to testify. (1 Comp. Laws, 388 et seq.)
    
    III. The court erred in not overruling defendant’s objeetion to the iutroduction of the Harvey v. Van Zandt records and papers, as the objection was too general, and should have been specific. (People v. Apple, 7 Cal. 289; Kiler v. Kimball, 10 Id. 268 ; Morgentham v. Harris, 12 Id. 245; Satterlee v. Bliss, 36 Id. 489; Owen v. Frink, 24 Id. 171; Dreux v. Domec, 18 Id. 83; Stale v. Jones, 7 blev. 415.)
    IV. An exception that the evidence is irrelevant, immaterial and incompetent, should be overruled if the evidence is admissible for any purpose. Sharon v. Minnock 6 Nev. 382; State v. Soule, 14 Id. 455; Thompson v. Thornton, 50 Cal. 145; Covemj v. Hale, 49 Id. 552; People v. Manning, 48 Id. 338 ; Sneed v. Osborn, 25 Id. 627.)
    
      Trenmor Coffin, also for Appellants :
    I. In order to entitle the prevailing party to have his witness’ fees taxed as costs in the action, the fees must have been actually paid to the witnesses. (2 Comp. Laws . 2742; Clarke v. Dinsser, 1 Bailey (S. C.) 1.90 ; Johnson v. Wideman, Cheves (S. C.) 26; Chillas v. Brooks, 5 Harr. (Del.) 60; Parsons on Costs, 198 sec. 43, and authorities there cited; Hopkins v. G-odbehire, 2 Yerg. (Teun.) 241; Wheeler v. Dozee, 12 How Pr. 450 ; Fhle v. Bingham, 4 Hill 596 ; Dean v. Williams, 6 Hill 376.)
    II. No witnesses were ever subpoenaed in either case. They were voluntary witnesses, and no fees, especially no mileage, can lawfully be taxed against the losing party on account of such voluntary witnesses. (Spaulding v. Tucker, 
      2 Saw. 50; Dreskill v. Parish, 5 McLean 213; Dreskill v. Parish, 5 McLean 241; Parker v. Bigler, 1 Fisher’s Pat. Cas. 289; Woodruff v. Barney, 2 Fisher’s Pat. Cas. 245; Clarke v. Linsser, 1 Bailey (S. C.) 190; Love v. Ingram, 2 Speer (S. C.) 88; Parsons on Costs, 201, sec. 50, and authorities cited; Dowling v. Bush, 6 How. Pr. 410; Wheeler v. Lozee, 12 How. Pr. 448-9; Bank of Niagara v. Austin, 6 "Wend. 548.)
    III. Mileage should not be taxed for a witness called and sworn without subpoena or subpoenaed at the place of trial. [Bratton v. Clendenin, Harper (S. C.) 454; Johnson v. Wideman, Cheves (S. C.) 26.
    IV. The same party has had taxed against the same plaintiffs the mileage of the same witnesses in two different cases set for trial at the same place and on the same day. Such double taxation of costs is not permissible nor lawful. (Bliss v. Brainard, 42 N. H. 257; State v. Allen, 26 N. J. L. 147.)
    V. Fees cannot be taxed for witnesses subpoenaed but not sworn. [Bacon v. Mathews, 5 Harr. (Bel.) 385; Booth v. Smith, 5 Wend. 107; Fhle v. Bingham, 4 Hill 596; Taylor v. McMahon,„ 2 Bailey 131; Love v. Ingram, 2 Speer 88.)
    
      Curler $ Bowler and H. T. Q-esioell, for Respondent:
    I. The actual service of a subpoena to entitle a witness to fees who attends court at the request of a party to the action is not necessary. [Cummings v. Akron Cement Co., 6 Blatchf. 509; Poe v. Sluao, 56 Me. 306 ; De Benneville v. De Benneville, 3 Yeates 558; Farmer v. Storer, 11 Pick. 241; Johnson v. Wideman, 1 Cheves 26.) A witness is entitled to his fees whether summoned or not. .(Gunnison v. Gunnison, 41 N. H. 121; Albany v. Derby, 30 Vt. 718.)
    II. The attendance of witnesses may be procured by request of parties, and the party so liable to the witness may recover disbursements for mileage and attendance against the defeated party. [Oratoford v. Abraham, 2 Or. 165.)
    
      III. The successful party is entitled to tax travel fees of a witness who attends voluntarily upon mere request. (Anderson v. Moe, .1 Abb. U. S. 299; Whipple v. Cumberland Cotton Co. 2 Sto. 661; Prouty v. Draper, 2 Sto. 199; ’ Hathaioay v. Poach, 2 Wood & M. 63.)
    IV. A party is entitled to full fees in every case wherein he is a witness. (Willink v. Peckle, 19 Wend. 82; Pinch v. PLoagland, 1 Wend. 69 ; Wheeler v. Lovzee, 12 How. Pr. 446 ; Vence v. Speir, 18 How. Pr. 168 ; Hicks v. Brennan, 10 Abb. Pr. 305.)
   By the Court,

Leonard, J.:

As we construe the statute governing .the allowance of witness fees in civil actions, it is only necessary, upon the facts presented, to decide whether or not such fees, for mileage or attendance, of the opposite party’s witnesses, can be taxed, and judgment therefor entered against the losing party, when such witnesses have not' been subpoenaed in the case according to law, or sworn or examined, although present in court at the request of the successful party. The question whether such witnesses could compel the party requesting their attendance to pay them reasonable compensation therefor, is not in the ease. The allowance of witness fees is governed entirely by the statute. No amount beyond what is there stated can be taxed, in any event, for any witness; nor can that be, if only a certain class of witnesses are allowed fees, without showing that such witness belongs to that class. The statute provides as follows: “Witnesses required to attend in any of the courts of this state shall be entitled to the following fees : * * * Witness fees in civil cases shall be taxed as disbursement costs against the defeated party. * * *” (Comp. Laws, 2742 ) It is plain from the foregoing that witness fees which may be taxed, mentioned in the last part of the section, are the same as those stated in the first part, which witnesses shall be entitled to receive ; also, that such fees are limited to witnesses who have been required to attend. When is a witness required to attend before a court? Is it one who attends under the obligatory requirements of the law, or one whose attendance is secured by a mere request of a party, or both ?

The present fee bill was passed in 1865. The prior one (St. 1861, p. 250, sec. 8) provided that witnesses in civil .cases should have two dollars a day for attendiny before auy court, etc., and twenty cents a mile for traveling to the place of trial. At that time, and at the date of the passage of the present fee bill, the statute in relation to the manner of compelling the attendance of witnesses was the same, in substance, as now. (Stat. 1861, pp. 374, 375; Stat. 1864; Comp. Laws, 1449, 1450.) It provided that “a subpoena may require not only the attendance of the person to whom it is directed, but may also require him to bring, with him any books,” etc. No person shall be required, to attend as a witness before any court * * * out of the county in which he resides, unless the distance be less than-miles from his place of residence to the county trial. * * * The subpoena shall be issued as follows: To require attendance before a court. * * * To require attendance out of court, before a judge, referee, * * * before whom the attendance is required. * * * To require attendance before a commissioner appointed to take testimony. * * * ”

At the date of the passage of the present fee bill, as now, there was no other method of requiring or compelling attendance of witnesses in a statutory sense than by subpoena. It is plain that the word “require,” then and now used in the statute, meant and means the saiue as ££ compel. ’ ’ The legislature did xxot intend to say that no person should be “requested” to appear before axxy court out of his county, unless the distance was less than a certaixi number of miles from his place of residence to the county of trial. Webster defines “requix’e” as meaning “to demand; to ask as of right and by authority. We require a person to do a thing and we require a thing to be done. ’ ’ He also says it is rarely used in the sense of “ asking as a favor. ” It is our opinion that when the legislature in 1865 changed the fee bill of 1861, by limiting witnesses entitled to fees to such as are required to attend, it was intended to use that word in the sense iu which it was and is employed in the civil practice act. The then existing statute provided that a. witness might be required to Attend by a subpoena, and the fee bill was changed so as to allow witness fees only when witnesses were so required. Saying that witnesses “required to attend before any court” shall be allowed fees, is the same as saying that witnesses who attend “ pursuant to law” shall receive them. (See Spaulding v. Tucker, 2 Saw. 51; Woodruff v. Barney, 2 Fisher Pat. Cas. 244.) The judgment is reversed, and the cause remanded for trial.

Hawley, C. J.,

dissenting :

In my opinion witnesses who attend court at the request of a party without the service of a subpoena are entitled, under the statute, to fees and mileage for attendance. It is claimed that the words ‘ ‘ required to attend ’ ’ (2 Comp. Laws, 2742) confine the allowance of fees to witnesses who are required to attend court by virtue of legal process. In support of this view the decisions of the federal courts, which hold that “ pursuant to law ’ ’ means upon service of process, are cited. The statute of this state does not, however, confine the payment of fees to witnesses who are required to • attend court pursuant to law, unless this construction necessarily follows from the use of the word “required.” It is true that this word is more frequently used as asserting a right, or as a positive demand, “to claim as by right and authority ;” but it is also defined as meaning, “to ask as a favor; to request.” (Webst. Diet.) We gain but little light in searching for the definition of this word. It has been held in one case that the words “request” and “require,” although derived from a common source, may, and often do, have a meaning radically different (Johnson v. Clem, 27 Alb. Law J. 444) and in another case it is said that these words have the same origin. “ Usage has given to them somewhat different meanings, which, however, are more distinctions in intensity than in effect or substance.” (Prentice v. Whitney, 8 Hun 301; Abb. Law Dict. “Request.”)

I think it was the intention of the legislature that witnesses should be paid, for their dttenclance at court without reference to the means employed in procuring their attendance. Witnesses may be required to attend court by agreement, or by the request of a party, without the service of a subpoena; and if they do so attend, they can, in my opinion, collect their fees for mileage and attendance from the party at whose request they were “required to attend.” The fees thus paid would, it seems to me, be a necessary disbursement in the action which could, under the provisions of the statute, “be taxed as disbursement costs against the defeated party.”

It is true, as was said by the supreme court of Oregon, “that the statutory means of compelling the attendance of witnesses is by subpoena duly served ; but we are at a loss to see how any party cau be injured in having to pay mileage and attendance merely for the witnesses of an adversary who attends upon request or agreement, when the additional expense of officers’ fees and mileage for issuing and serving of a subpoena, swelling largely the claim for disbursements, could do no more than procure the attendance of the witness.” (Crawford v. Abraham, 2 Or. 166.)

Substantially the same views have been repeatedly expressed by the supreme and superior courts of New York; “Witnesses are entitled to their fees from the party at whose instance they attend, whether they are subpoenaed or not. The non-service of a subpoena would be no defense for the party when sued by a witness for his fees, who had attended as his witness at his request. Nor is it possible to perceive how the want of a subpoena cau relieve the unsuccessful party from the payment of the fees of his adversary’s witnesses.” (Wheeler v. Lozee, 12 How. Pr. 448; Vence v. Speir, 18 How. Pr. 168.) “The fee bill gives compensation to witnesses for daily attendance upon court; it does not say anything about attendance in obeclience to subpoena; if subpoenaed there is an additional allowance for cost of service. This is necessary to enable a party to compel attendance. The defendant, being liable to these witnesses for their cost, is entitled to the bill as it has been taxed.”. (Lagrosse v. Curran, 10 Phil. 141. See, also, Farmer v. Storer, 11 Pick. 241; Gunnison v. Gunnison, 41 N. H. 128.)

I also think that witnesses who attend court in two or more cases, are entitled to fees for mileage and attendance in each case. (Flores v. Thorn, 8 Tex. 382; Robison v. Banks, 17 Ga. 215; McHugh v. Chicago & N. W. R. Co., 41 Wis. 81; Willink v. Reckle, 19 Wend. 82; Hicks v. Brennan, 10 Abb. Pr. 305; Vence v. Speir, 18 How. Pr. 168.)

I am, therefore, of opinion that the judgment of the district court should be affirmed.  