United States v. Southern Pac. Co.

The question presented to the court, on appeal from the taxation of costs by the clerk, is whether or not costs may be taxed against the losing party for mileage of witnesses subpoenaed in the Northern district of California to appear before the court at Los Angeles. Mileage for these witnesses was taxed by the clerk from the north line of the Southern district to Los Angeles, where the court was held, a distance of 275 miles. The contention of the defendant is that no mileage should be allowed for these witnesses, or, if allowed, the mileage should be allowed for a distance not exceeding 100 miles from the place where the court was held.

[1] In 1871 Judge Sawyer, in the Circuit Court for the District of California (Spaulding v. Tucker, 2 Sawy. 50 , Fed. Cas. No. 13,221), held that a subpoena served without the district and at a place more than 100 miles distant from the place of holding court had no potency, and that a witness who attended from beyond the district, and more than 100 miles distant from the place of holding the court, attended voluntarily. This decision is well supported by authority existing at that time and by many decisions rendered since, and it will be…