American Nat. Bank v. Cooper , 44 Idaho 288 ( 1927 )

A default judgment having been entered against respondent Larson, as garnishee, in the action by appellant against the defendant Cooper, on her motion, the court set aside the former judgment, entered judgment in favor of the garnishee and allowed her costs in the sum of $166. This appeal is from the order taxing costs.

It is contended that the item of $160 allowed for mileage was not "necessarily incurred" by respondent's husband as a witness and should not have been included as taxable costs within the purview of C. S., sec. 7218. It was shown that respondent and her husband arrived in Idaho Falls previous to the filing of the motion to set aside the judgment, and, at the time of their arrival, there was no proceeding pending which necessitated his presence as a witness. A subpoena could not properly have beenissued, requiring his attendance as a witness, at the time ofhis arrival. These facts and circumstances together conclusively establish that the travel was not undertaken by the husband in reasonable contemplation of being a witness in this cause. The trial court erred in allowing mileage of more than one mile for this witness as taxable costs. (Crawford v.Abraham, 2 Or. 163.)

The order of the trial court is modified by deducting therefrom the sum of $159.75, and, as so modified, is affirmed. Costs to appellant.

Givens, Taylor and T. Bailey Lee, JJ., concur.