Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1902-03-22
Opinion by Massey, c. J.

The respondent asks that the costs
claimed by the rlator be retaxed. He
contends first. that the tees Tor ali
witnesses should be stricken out. i,
appearing that all the Witnesses vol
UNFAIRLY appeared, and under the rul- !
ing in MeagheT '. Van Gand:. is New
23O. reiator is not entitled to recover
for such fees. The facts disclosed by
the record in this case upon which re
later rests his contention, are very
materially different from the facts |
shown by the record IN the case cited
In this case subpoenaes were issued |
out Of the courl for all the witnesses |
These subpOenaes were returned with |
the endorsement of the witnesses ack- |
nowledging service. This return, in
our opinion. was sufficient upon which
to base a process Tor the compulsory
attendance of witnesses in case they
failed or refused to attend. 1t was, in
effect and in lieu of the recitals OF the
return of an officer serving the pro
cess. In Meagherv v. Van Zandt, supra,
no subpoenaes had been issued from
the court no witnesses had been serv-
ed with process and none We're called,
sworn and examined The attendance
of the witnesses upon the court in
that case was in response to subpoe-
macs issued in another action then
pending in the trial court. The case
cited was dismissed without trial. and
hence cannot apply to the facts OF the
case at bar. This objection will there
fore be Overruled.
Again. it is claimed that the fees of
the witness Dixon should be stricken
out. he being party TO the proceed
ing of the State Ex Rel. Dixon V. Van
Patten consolidated with this pro-
ceeding by stipulation in open court
the day of the trial. The two pro-
'ceedings were instituted at different
times between different parties. and
involvd to a limited extent issues of
different character. The consolida-
ticn was for the purposes OF the trial.
Before there was any consolidation a
subpoena was issued tor Dixon. We
cannot hold that his attendance was
no, in response to the process. While
his attendance upon court i'll the pro
ceeding IN which he was relator might
have been necessary, certainly he
could not have been compelled to at
tend in this proceeding without pro-
cess and his presence was not nee
essary He did attend in answer to
the process of the court, was called
sworn and examined, and in the alb
sence of further showing we are OF the
opinion that his claim for fees should
be allowed
It is also objected that the fees o:
the witness Hildebrandt should no;
be allowed. The facts upon which
this claim is based are, that the Wit
ness attenaed court under Subpoena
was not called. sworn. or examined il
the proceeGing Why he was requir
ed as a witness. why he was not call
ed and sworn and examined. is not
shown. and in the absence Of sucl
showing. upon the naked facts stated
it does no. seem to us that his attend
ance was necessary. or that the tee:
tor his attendance were necessary a
a part OF the costs OF relator Til
objection viii therefore be sustained.
no win
and in, response thereto attende,
court. and was called sworn and e.
amined on the trial oi the consali!a'
ed proceedings. His testimony II
lated to matters il the Van Pate
case, and it does not appear from hi
testimony. or otherwise, that his al
tendance in this proceeding was net
eSsary for any purpose. The clair
Tor his ices should therefore he dis
allowed and stricken out
The fee OF $1.25 claimed By relate
for typewri'ing brief upon the authol
ity of the State v. Sadler, 13l. wi
also be stricken out. An order wi
therefore be made retax;ng the cost
III accordance herewith and the iudS
ment to thai extent modined.
We concur:
Beiknap. J.
Fitzgerald, j.
Filed March 81, 1902
Eugene Howell
Secretary of State and ex-officio cler
OF the Supreme Court.
Filed with printer for publicatio
March q, 1902
Eugene Howell.