NO. 85-431 

IN THE SUPREPE COURT OF THE STATE OF MONTANA 

1986 

HAROLDEEN WITTY, 

Plaintiff and Respondent, 

VS. 

HARRELL W. PLUID,JR., and 

LYLE PLUID, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Nineteenth Judicial District, 

In a-nd for the County of Lincoln, 

Honorable Robert M. Holter, Judge Presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Murphy, R.obinson, Heckathorn C Phillips, I. James 

Heckathorn, Kalispell, Montana 

For Respondent: 

Measure, Ogle & Ellingson, Jeffrey D. Ellingson, 

Kalispell, Montana 

Filed: 

Submitted on Briefs: Dec. 18, 1985 

Decided: February 20, 1986 

FLB ;? i, 1986 

- Clerk 
Mr. Justice F2illiam E. Hunt, Sr. , delivered the Opinion of 

the Court. 

Appellants appeal from the judgment of the Lincoln 

County District Court ordering appellants to pay respondent's 

expert witness fees. 

We reverse. 

The sole issue on appeal is whether the order of the 

District Court directing appellants to pay respondent's 

expert witness fees is proper. 

Respondent brought an action in the District Court and, 

after a jury trial, prevailed on the merits. Respondent then 

submitted to the trial court her memorandum of costs a.nd 

disbursements. 

The appellants objected, moved to strike the cost bill 

as frivolous, moved the court to tax costs in accordance with 

5 25-10-502, MCA, and impose sanctions pursuant to Rule 11, 

M.R.Civ.P. Following submission of briefs and. a hearin.g, the 

trial court issued its order allowing respondent her costs 

for expert witnesses. The court awarded costs for four 

expert witnesses in the amount of $1,000, $1,700, $500, and 

$410. This appeal followed. 

We have addressed this issue before in Swenson v. 

Buffalo Building Co. (Mont. 1981.1, 635 P.2d 978, 38 St.Rep. 

1588. In Buffalo, the appellant appealed the trial court's 

allowance of $1,500 for expert witness fees. We stated: 

A verified memorandum of costs and disbursements is 

prima facie evidence that the items were 

necessarily expended and are properly taxable, 

unless, as a matter of law, they appear otherwise 

on the face. The burden of overcoming this prima 

facie case rests upon the adverse party. 

635 P.2d at 985. In the instant case, respondent's costs for 

expert witnesses are not properly taxable as a matter of law. 
Witness fees are controlled by statute. Section 

26-2-501, MCA, states: 

Witnesses in courts of record - and before certain 

court officers. (1) Witness fees are as follows: 

(a) for attending in any civil or criminal action 

or proceeding before any court of record, referee, 

or officer authorized to take depositions or 

commissioners to assess da.mages or otherwise, for 

each day, $10; . . . 

Section 26-2-505 states: 

Expert witnesses. An expert is a witness and 

receives the same compensation as a witness. 

The respondent argues that 5 25-10-201, MCA, gives a 

district court the discretion to award costs for expert 

witnesses. That section states: 

Costs generally allowable. A party to whom costs 

are awarded in an action is entitled to include in 

his bill of costs his necessary disbursements, as 

follows: 

. . . (9) such other reasonable and. necessary 

expenses as are taxable according to the course and 

practice of the court or by express provision of 

law. 

Where there are two statutes concerning the same 

subject, the particular controls the general. Section 

1-3-225, MCA. -- See also State Consumer Counsel v. Department 

of Public Service Regulation (1979), 181 Mont. 225, 593 P.2d 

In this case, we have a statute specifically limiting 

expert witness fees to $10 per day. This statute controls 

the general statute authorizing a district court to award 

costs in accordance with the course and practice of the 

court. 

Of course, a party can pay an expert witness any fee he 

or she chooses, but a district court cannot award costs in 

excess of $10 per day per witness. 
Therefore, we hold that the trial court abused its 

discretion in ordering appellants to pay the costs of 

respondent's expert witnesses in excess of $10 per day per 

witness. This matter is remanded to the District Court with 

instructions to enter judgment in accordance with this 

opinion. 

We Concur: 

/ 

p Chief Justice