Wheeler, Robert

English

UND Scholarly Commons (University of North Dakota)

North Dakota Law Review Volume 40 Number 2 Article 11 1964 Federal Civil Procedure - Fees and Costs - Witness Fees - Rejection of the 100-Mile Rule for Taxing Travel Costs Robert Wheeler Follow this and additional works at: https://commons.und.edu/ndlr  Part of the Law Commons Recommended Citation Wheeler, Robert (1964) "Federal Civil Procedure - Fees and Costs - Witness Fees - Rejection of the 100-Mile Rule for Taxing Travel Costs," North Dakota Law Review: Vol. 40 : No. 2 , Article 11. Available at: https://commons.und.edu/ndlr/vol40/iss2/11 This Case Comment is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact und.commons@library.und.edu. RECENT CASESIn following the minority rule, and in effect rejecting theharsh majority view, the New York court is following thetrend it has established in considering other types ofcontempt.16North Dakota did not discuss the publisher's intentin the only Supreme Court case on contempt by publication.' 7In State v McGahey's contempt was not found since therewas no intent to defy a court order It is submitted thatNorth Dakota should follow the rule laid down in the principalcase making intent a prerequisite to the finding of a contemptof court by publication. The contrary approach would undulyrestrain a responsible press.ALAN GRINDBERGFEDERAL CIVIL PROCEDURE-FEES AND COSTS-WITNESSFEEs-REJECTION OF THE 100-MILE RULE FOR TAXING TRAVELCOSTs-After directing a verdict for the defendant, thecourt assessed as costs against the plaintiff full travelexpenses for witnesses, three from Saudi Arabia, called bythe defendant from outside the judicial district. On re-trialthe jury found against the plaintiff, and the trial court reducedthe costs to $16 each for the witnesses (eight cents a mileeach way for 100 miles) 2 While no statute or rule expresslylimits mileage for witnesses from outside the district to betaxed as costs, a 100-mile limitation has been consideredimplicit in the Federal Rules of Civil Procedure. 3 The Courtof Appeals held, four judges dissenting, that the long-standinglimitation on taxation of travel costs from without the districtto no more than 100 miles from the place of trial is supported16. See People v. Court of Oyer and Terminer, 101 N.Y. 245, 4 N.E. 259(1886) (Juror not guilty of contempt for innocently disobeying court order)In re Rotwen, 291 N.Y. 116, 51 N..2d 669 (1943) (Attorney not guilty ofcontempt as he had acted without intent to assail the dignity of the court)Spector v. Allen, 281 N.Y. 251, 22 N.E.2d 360 (1939) (No contempt as disobediencehad not been shown to be willful).17. State v. Nelson, 29 N.D. 155, 150 N.W 267 (1914).18. 12 N.D. 535, 97 N.W 865 (1903)1. Farmer v. Arabian Am. Oil Co., 176 F Supp. 45 (S.D.N.Y. 1959), rev'd,277 F.2d 46 (2d Cir. 1960), cert. densed, 364 U.S. 824 (1960).2. Farmer v. Arabian Am. Oil Co., 31 F.R.D. 191 (S.D.N.Y. 1962).3. Barnhart v. Jones, 9 F.R.D. 423 (S.D. W Va. 1949) See 6 MOORE FEn.PRAC. 1363 (2d ed. 1953).1964] 209210 NORTH DAKOTA LAW REVIEW [VOL. 40neither by statute nor reason, and the original trial courtwas within its sound discretion in taxing full costs againstthe plaintiff. Farmer v Arabian American Oil Co., 324 F.2d359 (2d Cir 1963) 4The Federal Rules of Civil Procedure, allow costs asof course to the prevailing party unless the court directsotherwise, making taxation of costs a matter within theequitable discretion of the court.6  However, recoverableexpenses generally have been held to exclude amounts paidto witnesses for travel beyond the effective limits of a sub-poena. 7 Statute expressly restricts the subpoena power ofthe courts.8Normally, the appellate court will not interfere with atrial court award of costs unless discretion has been abused.9In the instant case, the appellate court did interfere and ruledthe lower court on re-trial had abused its discretion in dis-allowing costs originally taxed against the plaintiff. 10The majority said that 28 U.S.C. § 1821 (1958) now pro-vides clear authorization for allowance of actual travelexpenses for witnesses who come from afar and that 28 U.S.C.§ 1920 (1958)1 gives power to tax costs without "a shadowof a suggestion" that the court's authority to issue a subpoenahas anything to do with what constitutes a recoverable dis-bursement for a witness. 12  The great bulk of authoritysupports the 100-mile rule,1 3 but a few recent district courtdecisions have rejected it. 44. Petition for cert. filed, 32 U.S.L. WEEK 3307 (U.S. Feb. 3, 1964) (No. 804).5. FED. R. Civ. P 54(d).6. United States v. Bowden, 182 F.2d 251, 252 (10th Cir. 1950).7. Vincennes Steel Corp. v. Miller, 94 F.2d 347, 350 (5th Cir. 1948) Kirbyv. United States, 273 F 391, 396 (9th Cir. 1921) (citing cases from 2d, 3rd, 4th,6th, 7th and 8th Cirs.) Commerce Oil Ref. Corp. v. Miner, 198 F Supp. 895(D.R.I. 1961).8. FED. R. Civ. P 45(e)(1). This rule limits service of a subpoena outsidea judicial district to within 100 miles of the place of trial.9. Syracuse Broadcasting Corp. v. Newhouse, 319 F.2d 683 (2d Cir. 1963)Utah v. United States, 304 F.2d 23, 27 (10th Cir. 1962) Euler v. Waller, 295F.2d 765 (10th Cir. 1961) T. & M. Transp. Co. v. Shattuck Chem. Co., 158 F.2d909 (10th Cir. 1947) See MooRE, op. cit. sunra note 3, at 1308.10. Farmer v. Arabian Am. Oil Co., 324 F.2d 359, 365 (2d Cir. 1963).11. "A judge or clerk of any court of the United States may tax as costs thefollowing" (3) Fees and disbursements for printing and witnesses."12. Supra note 10, at 362.13. E.g., Reynolds Metals Co. v. Yturbide, 258 F.2d 321, 335 (9th Cir. 1958),cert. denied, 358 U.S. 840 (1958). Kemart Corp. v. Printing Arts Research Labs.Inc., 232 F.2d 897 (9th Cir. 1956), Spiritwood Grain Co. v. Northern Pac. Ry.Co., 179 F.2d 336 "(8th Cir. 1950) (dictum) , Lee v. Pennsylvania R. R. Co., 93F Supp. 309 (E.D. Pa. 1950).14. Bennett Chem. Co. v. Atlantic Commodities Ltd., 24 F.R.D. 200 (S.D.N.Y.RECENT CASESThe minority in the instant case contended 28 U.S.C. §1821 (1958) provides only that a witness shall recover his fullstatutory fees and has no relationship to the eventual recoveryof fees as costs by the prevailing party In addition, theminority noted that an Admiralty rule,'1 5 formulated by theSupreme Court, explicitly espouses the 100-mile limitation ontaxation of costs, and the majority decision creates a differentrule for costs in civil cases from that in Admiralty 16Under English practice, costs have included essentiallyall reasonable items of expense, at times greatly exceedingthe actual sum in dispute.1 7  Though t h e English systempurportedly tends to discourage unfounded litigation,", pro-ponents of American practice claim the English system alsotends to deter justice by creating fear of being saddled withan opponent's legal expenses.1 9If the purpose of the 100-mile rule is to protectimpecunious litigants, it may, on occasion, have considerablemerit. In the instant case, it would have protected anindividual from bearing the costs of a wealthy corporationthat could better have borne them. On the other hand, wherea party with limited means must bring witnesses from greatdistance, the rule prevents him from having costs taxedagainst a losing litigant that might better afford the expense.If the discretion of the courts can in reality provide a safe-guard against unreasonable costs being taxed, there seemsto be adequate basis for rejection of the 100-mile rule.ROBERT WHEELERSALES-CONDITIONAL SALES-RECOVERY OF DEFICIENCY-Defendant purchased a combine from the plaintiff under a1959) Maresco v. Flota Mercante Grancolombiana, 167 F Supp. 845 (E.D.N.Y.1958) Bank of America v. Loew's Int'l Corp., 163 F Supp. 924 (S.D.N.Y. 1958).15. ADMIRALTY RULE 47, 28 U.S.C. (1958), states. "Traveling expenses ofany witness for more than one hundred miles to and from the court or place oftaking the testimony shall not be taxed as costs."16. Supra note 10.17. See Goodhart, Costs, 38 YAIz L.J. 849, 850 (1929), MooRE, op. cit. supranote 3, at 1302.18. See Goodhart, supra note 17, at 872.19. See Moore, op. cit. supra note 3, at 1304.1964]

Federal Civil Procedure - Fees and Costs - Witness Fees - Rejection of the 100-Mile Rule for Taxing Travel Costs

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Federal Civil Procedure - Fees and Costs - Witness Fees - Rejection of the 100-Mile Rule for Taxing Travel Costs

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