{
  "id": 1511807,
  "name": "Lansing Wheelbarrow Company v. Montgomery",
  "name_abbreviation": "Lansing Wheelbarrow Co. v. Montgomery",
  "decision_date": "1909-10-18",
  "docket_number": "",
  "first_page": "600",
  "last_page": "602",
  "citations": [
    {
      "type": "official",
      "cite": "91 Ark. 600"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "56 Ark. 249",
      "category": "reporters:state",
      "reporter": "Ark.",
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        1326178
      ],
      "opinion_index": -1,
      "case_paths": [
        "/ark/56/0249-01"
      ]
    },
    {
      "cite": "64 Ark. 148",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1907393
      ],
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      "case_paths": [
        "/ark/64/0148-01"
      ]
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    {
      "cite": "64 Ark. 148",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1907393
      ],
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      "case_paths": [
        "/ark/64/0148-01"
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  "last_updated": "2023-07-14T21:22:42.866546+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Lansing Wheelbarrow Company v. Montgomery."
    ],
    "opinions": [
      {
        "text": "McCulloch, C. J.\nThe sole question involved in this appeal is whether or not a witness in a civil case pending in the circuit court is entitled to have his fees for attendance and mileage taxed against the losing party without having, in the time and manner provided by statute\u00bf proved his account therefor. The statute is as follows:\n\u201cEvery account for attendance as a witness shall be sworn to, and shall state that he was summoned to attend as a witness in the cause upon which the charge is made and the number of days he attended and, if summoned without the limits of the county, the number of miles he traveled in consequence o.f the summons.\u201d Section 3524, Kirby\u2019s Digest.\nThis court, in Fulks v. State, 64 Ark. 148, held that a witness in a criminal case could not''have his fees taxed unless he proved same in the manner and within the time prescribed by the statute. The statute applies equally to\" civil and criminal cases.\nIt was shown in evidence in the present case that it had always been the prevailing custom in Cross County, where the case was pending, for witnesses to report to the clerk verbally the number of days\u2019 attendance, without making out an account and swearing to it, as provided by the statute. This alleged custom does not alter the rights of the parties, nor prevent the operation of the statute. Parties, witnesses and officers are all presumed to know of the existence of this statute, and it cannot be abrogated by custom.\nReversed and remanded with directions for further proceedings on the motion to retax costs not inconsistent with this opinion.",
        "type": "majority",
        "author": "McCulloch, C. J."
      }
    ],
    "attorneys": [
      "T. E. Hare, for appellant.",
      "J. T. Patterson, for appellee."
    ],
    "corrections": "",
    "head_matter": "Lansing Wheelbarrow Company v. Montgomery.\nOpinion delivered October 18, 1909.\n1. Witnesses \u2014 fees\u2014prooe op attendance. \u2014 A witness who fails to prove up his account for attendance as witness, as required by Kirby\u2019s Digest, \u00a7 -3324, is not entitled to have his\u2019account for attendance and mileage taxed as part of the costs against the losing party. (Page 601.)\n2. Same \u2014 custom in violation op statute. \u2014 The statute requiring witnesses to make out their account for attendance in a case and to swear to it (Kirby\u2019s Digest, \u00a7 3524) cannot be abrogated by a custom of permitting witnesses to report to the clerk verbally the number of days\u2019 attendance, without making out their accounts and swearing to them. (Page 601.)\nAppeal from Cross Circuit Court; Frank Smith, Judge;\nreversed.\nT. E. Hare, for appellant.\nThere is only one way by which the fees of a witness may be taxed as cost in a case, and this is by making out his account stating that he was summoned to attend as a witness in the cause, the number of days he attended, and, if summoned to attend from without the limits of his county, the number of miles traveled \u2014 and this account must be sworn to. Kirby\u2019s Dig., \u00a7 3524. This witness\u2019 attendance must be so claimed and proved at each session he attends. Id. \u00a7 3525; 64 Ark. 148. If he is a volunteer witness, he is entitled to a fee only for the day he is sworn and testifies. 56 Ark. 249.\nJ. T. Patterson, for appellee.\nThe witnesses at each term claimed their attendance, showing the number of days attended, of which the clerk made a minute. They doubtless believed that they were doing all that was required of them. The statute is not so mandatory as to preclude the trial court from determining the question upon equitable principles."
  },
  "file_name": "0600-01",
  "first_page_order": 620,
  "last_page_order": 622
}