Del Mar Canning Co. v. Pacific Gas & Electric Co.

PETERS, P. J.

Plaintiffs appeal from a portion of the order of the trial court taxing costs. The items objected to all deal with mileage fees allowed for one hundred miles, one way, for some nineteen witnesses who voluntarily appeared and testified at the request of defendant, and who lived outside the county and more than one hundred miles from the place of trial. The sole question presented on this appeal is whether a successful litigant may recover, as costs, mileage fees for one hundred miles one way of witnesses who appear voluntarily and testify and who reside out of the county at a distance greater than one hundred miles from the place of trial.

The right to recover costs is a matter of statutory regulation.

(Williams

v.

Atchison etc. Ry. Co.,

156 Cal. 140

[719]

[103 Pac. 885, 134 Am. St. Rep. 117, 19 Ann. Cas. 1260].) Sections 1032 and 1033 of the Code of Civil Procedure provide for the recovery of costs by the prevailing party. These sections do not set forth what items may be recovered. Section 4300g of the Political Code provides for the circumstances under which a witness may collect his fees. It provides that:

“For each day’s actual attendance, when legally required to attend upon the superior court, per day, two dollars in civil cases and one dollar and fifty cents in criminal cases.

“Mileage actually traveled, one way only, per mile, ten cents . . . ”.

Section 1989 of the Code of Civil Procedure provides that: “A witness is not obliged to attend as a witness before any court, . . . out of the county in which he resides, unless the distance be less than one hundred miles from his place of residence to the place of trial.” As originally enacted in 1872 this section provided for a thirty-mile distance for the range of a subpoena. In 1915 (Stats. 1915, p. 330) the distance was raised to fifty miles. The present provision was adopted in 1935 (Stats. 1935, p. 942).

It will be noted that under section 4300g of the Political Code, supra, witness’ fees are composed of two elements: First, an allowance for attendance, and, secondly, an allowance for mileage. In the paragraph of the section dealing with the allowance for attendance it is provided that such fee is allowable only when the witness is “legally required to attend upon the superior court.' ’ There is no such express provision contained in the paragraph dealing with the allowance for mileage, but the same limitation is implied. Appellants contend that, properly construed, the section prohibits the recovery of mileage for those witnesses who do not reside within the effective range of a subpoena, and who could not be compelled to attend, but do so voluntarily.