Opinion
No. 32496.
January 11, 1937.
1. COSTS.
Prevailing party held not entitled to recover witness fees, where witnesses merely appeared before clerk and furnished statement of number of days they had attended court and amount of mileage to which they were entitled, but made no affidavit to such facts and no certificates of attendance were issued by clerk during term of court or within five days thereafter (Code 1930, secs. 1806, 1807).
2. COURTS.
While courts may by nunc pro tunc orders supply omissions in record of what had previously been done, and by mistake or neglect not entered, courts cannot thus supply an entire omission to act within time limit for such action.
3. WITNESSES.
Order of court attempting to authorize affidavits to be made and certificates issued for fees for witnesses for attendance at former terms of court was ineffective under statute requiring that to be entitled to charge for attendance witnesses must prove their attendance and obtain clerk's certificate during term or within five days thereafter (Code 1930, sec. 1807).
APPEAL from the circuit court of Jasper county. HON. EDGAR M. LANE, Judge.
O.M. Oates, of Bay Springs, for appellant.
Section 1807 of the Code of 1930 reads in part as follows: "A witness shall not be entitled to charge for his attendance in a civil case at any term of the court unless he shall, during the term or within five days thereafter, prove his attendance and obtain a certificate in the manner directed, etc." In the case at bar, the testimony shows that two terms of the court below had passed, and the witnesses in question did not prove their attendance during the term of court and obtain a certificate within five days thereafter, and for this reason, it is the contention of the appellant that the motion to retax as to these witnesses, who failed to make these affidavits, and to procure these certificates, are not permitted to collect these fees. In fact, these affidavits were permitted under the order of nunc pro tunc, to be filed months after the final judgment, and after the motion was made to retax.
Hubbard v. Hemphill, 94 Miss. 388, 47 So. 657; Cohn v. Woods, 105 Miss. 716, 63 So. 221; Woodruff v. Bright, 166 So. 390.
We respectfully submit that the court erred in overruling the motion to retax; that the statute is wise and should not be departed from; and that the court below should be reversed and judgment here for appellant. Sam Whitman, of Bay Springs, for appellee.
The testimony of the clerk clearly shows that for a period of time beyond which the memory of man runneth not to the contrary, it has been the uniform custom and practice of the clerks of the courts in this county, to tax witness fees in the bill of costs upon mere oral statements of per diem and mileage by the witnesses, and without affidavits and certificates. And such, according to the opinion of the trial court, is, and has been, the practice and custom in this, the Thirteenth Judicial District.
The witnesses, the payment of whose fees appellant now seeks to evade, were not versed in the law, and in the matter of proving their attendance and mileage, but simply followed a custom which, as above shown, had been in vogue in Jasper county, and this judicial district for a great number of years. We insist that the witnesses had the right to rely on this custom in proving their attendance. We also insist that the clerk was justified in taxing these fees and the mileage in the bill of costs, in view of said custom.
We insist that if a witness fee in a civil case is a debt, of the nature of a debt of open account, then certainly suit, which carries with it necessarily the right of proof, may be instituted within three years from the accrual of the right of action. And we submit that such proof may as well be made on trial of the debt issue within the three year period, as during the term of the court at which the service was rendered, or within five days thereafter.
This is an appeal from an order of the circuit court overruling a motion to retax costs by eliminating from the cost bill the sum of sixty-seven dollars and eighty cents taxed therein as fees for witnesses who failed to prove their attendance at court in the manner prescribed by sections 1806 and 1807, Code of 1930.
The proof shows that the witnesses in question merely appeared before the clerk and furnished him a statement of the number of days they had attended the court and the amount of mileage to which they were entitled, but none of them made affidavit to these facts, and no certificate of attendance was issued by the clerk to any of these witnesses.
Upon the assignment of error based upon the action of the court in overruling the motion to retax costs, this cause is ruled by the case of Woodruff v. Bright, 175 Miss. 109, 166 So. 390, wherein the statutes and decisions bearing upon the point are collated and fully discussed, and it was held that witness fees are not recoverable where a certificate of allowance is not issued by the clerk during the term of court or within five days thereafter, although the witness may have made proper affidavit before the clerk. In the case at bar neither were the proper affidavits made nor the certificates issued during the term of court, or within five days thereafter, and consequently the motion to retax costs by eliminating these witness fees should have been sustained.
While courts may by nunc pro tunc orders supply omissions in the record of what had previously been done, and by mistake or neglect not entered, they cannot thus supply an entire omission to act within the time limit for such action. The statute, section 1807, Code 1930, requires that, in order to be entitled to charge for attendance, witnesses must prove their attendance and obtain the clerk's certificate during the term, or within five days thereafter, and the order of the court attempting to authorize affidavits to be made and certificates issued for attendance at former terms of the court was wholly ineffective. The positive limitation of the statute cannot be abolished in that way. 42 C.J. secs. 221, 222, and authorities there cited. For the error in overruling the motion to retax the costs the judgment of the court below will be reversed, and judgment will be entered here for the appellant.
Reversed, and judgment for appellant.