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.

Given by Chief Justice Shannon On an Ap
peal from a Justices Court.
George G. Indy, J In the District Court
". of Yankton County
Philip Jassman. March Term, 1878.
Appeal by defendant, on questions oflaw,
from a judgment OF Justice Roberts, render.
ed in favor Of the plaintiff for the sum of
$23 damages, and for the further sun of $50
taxed as costs of tie action. s. A. BoYles,
for plaintiff, and N. J. 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
law acne. The statement filed BY the ap
pellant contains fourteen alleged grounds
upon which he intends to rely on the hear
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, It 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 tee-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 SO of justices code also
section 81 of political code. The taxation
Is in the nature Of 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 thlng, called the
principal action. They are no part of the
matter in dispute, but arise In the solving
Oh w. a WlLue0h. - Subltl0U w Oo0 NOIlAH
for each days attendance and for each mile
actually Travelled q way, ten cents. And
In keeping his docket. the magistrate is
bound to enter therein, the names Of all
witnesses sworn, and at whose request; and
also the judgment, specifying the costs ineu.
ded. See section IS, "a, and 100 Of Justices
Code.
II, therefore, Q witness is entitled to mile.
age, 1t forms On item for each mile actually
travelled one way, and it must be thus item.
tied. It Is erroneous to tax the costs Of
witnesses In this way, to.wit: "First day
Ellen Indy $3.50; Edward Mehel $500;
Jacob Weber $780," etc. Each of them
would be entitled, for the day, to but one
dollar and NO travel 10 suggested or speci
fed. Where details = demanded. they
must be given; and I cannot Gee how, In
such CASE, they can be presumed.
Another point presented is-can the per-
diem and mileage be properly taxed, when
the Witnesses were not subpGnaed OF
sWorni
Under our Cedes, ! am of opinion that
the prevailing party may hsye taxed the
costs of hn material witnesses who attend.
ed 10 rood faith, without Q subp4ns, though
not examined. The general principle Is.
that whsrs no subpBna hss been issued 10
procure the attendance Of Witnesses, Q party
seeking to charge his sdvsrsayy With wit.
neooes' fees must show that they were ma.
terlal Witnesses for him In The action, and
that they attended q his request or BY
aeresnent. Hes Wheeler '. Loves 12 How.
Pr. 40; Talks '. Schmidt, Is I'd, $40;