Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-10-03

lleI, we cannot say that these facts and none
others appearing refusal to grant the relief is
an absence of discretion, for that would in eff
feet make the statute imperitive. No facts APP
pearlng in this case other than those upon
which the statute authorizes the Coart in it's
discretion to grant or refuse an order setting
aside the Judgment, the order must be af-
hrmed. GHFILLAN, G. j.
Nor7as Holbrook, respondent, as. Josiah G.
Cooley, appellant.
OPINION.
This case was decided in the district court
upon the return of the justice of the peace
before whom it was originally tried to an APP
peal, taken from the judgment there rendered,
upon questions of law alone. The Judgment
rendered by the justice in favor of the plaintiff
and against the defendent for 1920 damages
and $60.71 costs was affirmed in the district
court, and from that Judgment of affirmance
the defendant has brought appeal to this
court. The complaint states six distinct causes
of action. the fifth and sixth of which are
as follows: 1.-THE complaint shows,
for fifth cause of action, that
the plaintiff attended on the trial of cause in
the probate court in which the defendant
herein was plaintiff and the executor of the es-
tate of Asa G. Suttig was defendant, one day
witness for the defendant herein, at his
request and that he travelled twenty miles in
going and coming to court on said trial, and
that said services were worth the sum of two
and 20-l00 dollars.
For sixth cause of action the plain .if al
leges that on the trial of the said cause in
probate court the defendant requested the
plaintiff to bring his team to Waseca and come
himself and his father to Waseca and that he
would pay therefor; that the plaintiff did
bring his team to Waseca aforesaid and that
| ne Of aaTn for &c
the sum of two dollars.
Besides a general denial, the answer set up a
former suit and judgment in bar in respect to
the matters contained in said fifth
and sixth counts of action
stated in the complaint The pro-
ceedings which were had and the testimony
which was introduced on the part of the plain
tiff in respect to these two causes of action are
these stated in the return. The plaintiff him
self testified follows: ''He (defendant)
wanted father and l should come out here WA
seca) to suit he had with Suttig. He said if
we would take our team and come out he
| would pay us for it. l attended the trial and
was sworn in probate court. l was one day in
attendance. The distance was ten miles each
way. l took my team and hitched on fathers
buggy, and brought him and myself. He said
if we would not come he would get
az subpoena. Question-What was your
services and team worth? Objected to as
irrelevant and immaterial; that the law fixes
| witness fees. Overruled. Defendant excepted
Answer-It was worth $3.50. l paid my own
expenses.
T. Holbrcok, the father of the plaintiff
testified in respect to the same matter as fol-
lows: Defendant came to my house; plain
| tiff was living with me; he wanted we should
go to a law suit; that he had no subpoena, but
| he wanted we should go, and he would pay us
! for it; have load, and have to go around
| the other way; want you to go with your own
{oo, T ,,r.n
| it; he told us when we must be there; plain
| tiff took his own horses and my buggy and
| came.''
| Question-What was the use of the team to
| come to Waseca worth?
| Objected to irrelevant and immaterial,
| and also on the ground that the statute
has fixed the fees for attendance and
mileage, which is theamount the plaintiff could
! recover therefor, if any thing. Objection over
| ruled. Defendant excerpts to ruling 1t was
worth 50 for the use of the team. Defendant
| objects to answer, recorded on same grounds as
| above, with same ruling and exceptions.
Cross-examined: He told us he wanted us to
| go to Waseca; he had no subpoena, but wanted
we should come and he would pay us for it.
He had load, and had to 60 around the other
way, and could not carry us. You will have to
go with your own team and l will pay for 1T.
We came to Waseca under that request as wit
nesses.
The following comprises all the testimony
of these witnesses in regard to the matters
| embraced in the fifth and sixth causes of ac-
| lions, all that was given in the case in support
| thereof, SO far the return of the justice dis
closes.
The material and only reasonable inference or
conclusion to be drawn from this testimony so
far as it respects the plaintiff, is that the de-
| PENDANTS promise related solely to plaintiffs
services as a witness in going to and attending
| the trial. That was the subject of defendant S
| request, the material thing which he wanted
and constituted the sole consideration for his
promise. The of the team or wagon was
| not the subject of the contract, nor the thing
| concerning which he STIMULATING. Whether
the witness adopted one mode of conveyance or
another in reaching the trial or none at all, was
a matter of no moment or interest to him SO
that their presence at the trial was secured.
That is what he wanted and what be agreed to
pay for whether they came in one way or
another. This being the contract between
the parties, and the only one found
in connection with this mater, there
growing out of the transaction in favor of
plaintiff, in respect to which any evidence of
damages was admissible, and that was for the
recovery of such compensation for his services
as witness as he was entitled to in the absence
Of any special agreement fixing the amount.
The rule for ascertaing the measure of DANA
ges or compensation in such case is that pre-
scrlbed by the statute which allows one dollar
for each days attendance, and mileage at the
rate of six cents per mile each way from the
residence of the witness to the place of trial
Gen. Stat. 7,0S7.) No special agreement as to
the amount of compensation is alleged in the
complaint in this action. The allegations are
that plaintiff attended the trial as witness TO,