Daily press and Dakotaian. [volume] (Yankton, Dakota Territory [S.D.]) 1875-1880, 1878-08-14
A JUDICIAL OPINION

Given by Chief Justice Shannon On an Ap
peal from a Justices Court.
George G. Indy, In the District Court
Philip Jassman. March Term, 1878.
Appeal by defendant, on questions o. flaw,
from q judgment OF Justice Roberts, render.
ed in favor Of the plaintiff for the sum Of
$23 damages, and for the further sum of $52
taxed as costs of tie action. s. A. BoYles,
for plaintiff, and N. ]. Cramer, for defend
ant.
The appeal was heard and argued in court,
on the 14th day of March. 1878; and the
court desiring to consider thereof, q deci.
sion was reserved for that purpose.
OPINION BY SHANNON. j.
The defendant appealed under article XIV
of the justices code; and the notice shows
that the appeal was taken on questions Of
pellant contains fourteen alleged grounds
ing and certain evidence below was stipu.
lated tn be flea as part of the statement of
the case.
After much consideration Of this compli.
Gated case, I have arrived at the conclusion
that the first thirteen grounds of appeal al.
legged by the appellant. and set up in the
statement, should be overruled; and that
the Judgment below for twenty three dol
lars damages, in favor of the plaintiff, should
be affirmed.
The fourteenth ground, or exception, has
relation to the taxation Of costs of plaintiffs
witnesses. By the code, 1t is made obliga.
tory upon justices of the peace to tax the
costs allowed by law to the prevailing par.
ty. The act of taxing, or assessing, . bill
of costs, is we'll understood to signify q par.
ticular, or specific, statement of the items as
fixed by the fee.bills. See sections 1877 of
civil procedure. Costs are incidents to the
main action and judgment; and, when pro-
perly taxed, must be included in the judg.
ment. See section 50 of justices code also
section 81 of political code. The taxation
Is in the nature of q subordinate action be.
tween the parties, over which the justice
has the power Of deciding within the fee
bill.
The duty and power of taking costs, is
therefore, something appertaining to, and
defending on, another thing, called the
principa action. They are no part of thu
matter in dispute, but arise In the solving
of It. A witness 10 entitled to M d0llal
for each days attendance and for each mil.
actually travelled one way. ten cents. Ant
In keeping his docket, the magistrate Il
bound to enter therein, the names Of al
witnesses sworn, and at whose request; ant
also the judgment, specifying the costs sncu
ded. See section IS, "a, and 100 Of Justices
Code.
II, therefore, Q witness is entitled to mile
age, 1t forms IN item for each mile actuall!
travelled one way, and 1t must be thus item
tzed. It Is erroneous to tax the costs o
witnesses In this way, to.wit: "First do.
ELLEN Indy $3.50; Edward Mehel $500
Jacob Weber $780," etc. Each Of thea
would be entitled, for the day, TO but on!
dollar ; and NO travel 10 suggested or speci
fed. Where details are demanded, the!
must be given; and I cannot Gee how, II
such case, they can be presumed.
Another point presented is-can the per
diem and mileage b properly taxed, whel
the Witnesses were not subpGnaed o
sWorni
Under our Cedes. / am of opinion tina
the prevailing party may hsye taxed tn!
costs of hh material witnesses who attend
ed 10 rood faith, without Q subpoena, thougl
not examined. The gensfsl principle Ia
that where no aubpnna hA been issued u
procure the attendance Of witnesses. . part!
seeking to charge his adysrsasy With Wit
nesses' fees must show that they were ma
tesAl Witnesses for him 10 The action, snt
that they attended at his request or b!
agreeaaent. Zee Wheeler '. Iozee - How
Pr. 40; Tasks '. Schmidt, 25 I'd, $40