Akerly v. Vilas.

required that the application shall be made "before final hearing or trial." And the spirit and object of the act unite with its letter, in conducting imperatively to the conclusion that its meaning was to require it to be made before the party had voluntarily submitted his case to any trial or final hearing whatever in the State court.

Nor is this conclusion at all impeached by the rule that has been established by the Federal and other courts, under statutes authorizing appeals or writs of error from final judgments or decrees. It is generally held there, that the decree or judgment must be one purporting a full and final disposition of the case, and not on its face reserving a part of it for future decision by the court; yet, even in those cases, the rule has not been held with unreasonable strictness, but those decrees which substantially dispose of the merits of the controversy are held final so as to allow an appeal, although some matters essential to a complete execution of the decree are reserved for further examination and decree. Thus, in Forgay v. Conrad, 6 How. 201, a decree was passed disposing of the general merits of the action, but directing an account of rents and profits, and reserving that subject for further decree. A motion was made to dismiss, on the ground that the decree was not final. The court said: "The question upon the motion to dismiss is, whether this is a final decree within the meaning of the acts of Congress. Undoubtedly it is not final within the strict technical sense of that term. But this court has not heretofore understood the words 'final decrees' in this strict and technical sense, but has given to them a more liberal, and, as we think, a more reasonable construction, and one more consonant to the intention of the legislature." See also Bronson v. Railroad, 20 How. 524, 531. But even if, under this class of statutes, it were held that the decree or judgment must be absolutely final to authorize an appeal, no argument could be drawn from it by analogy against the conclusion already arrived at. The difference in the objects of the two statutes would at once furnish an answer. The one is designed to regulate the exercise of an appellate jurisdiction, by which the judgments of an inferior tribunal may be reviewed. It is natural in such case to require the inferior court first to dispose, substantially at least, of the whole case, before the appellate power could be invoked. But the object of the other statute was not to provide for a review of the decisions of an inferior tribunal, but for the exercise of an election by a party to a suit in a State court, to transfer it to another court of original jurisdiction for trial. The design was to authorize an election between the two; not to give him a chance at both. And this object can only be accomplished by requiring, as the statute does, the application to be made before any trial or final hearing in the case. The object of the one statute was to prevent an appeal until every thing had

Akerly v. Vilas.

been decided. The object of the other was to authorize a removal only before any thing had been decided.

It seems to me clear, therefore, that this case was not within the act of Congress, and that the order for removal was unauthorized. I am aware that the learned judge of the district court of the United States for this district has reached a different conclusion. His opinion upon the subject is published in the American Law Register for April, 1869. Upon this point he says: "If the cause had been finally determined by either judgment of the circuit court, or by order of the supreme court; then the application for removal would not have been filed before the final hearing or trial.' But the last order of the supreme court reversing the judgment of the circuit court, and remanding the cause to that court for further proceedings according to law, opened the whole case to litigation, the same as if no judgment had ever been rendered. The supreme court in effect ordered a venire facias de novo, which required the circuit court to hear the cause as if no hearing or trial had taken place."

If this is so, then this court has been laboring under a great delusion. If, after a case has been three times in this court, twice on appeal from final judgments in the court below, if after the essential vital legal questions upon which its decisión depends have been solemnly adjudicated by this court, and the cause remanded to the circuit, it starts there anew with nothing settled, "the whole case opened to litigation, as if no judgment had ever been rendered," then are not only our labors fruitless indeed, but those of the unfortunate litigants in the State courts are vainer than the labors of Sisyphus.

We have not so understood the law. We have uniformly applied to our decisions, so far as relates to matters within our jurisdiction, the same rule which the supreme court of the United States applies to its decisions; and have held that they become the law of the case, binding on the parties and the subordinate courts, and that the questions decided are not open to further litigation. We cannot have erred in this, unless the decisions of this court constitute an exception to the rule by which those of all other courts are governed.

I cannot but regret that this difference of opinion has arisen between this court and the learned judge of the district court. It may be the cause of much embarrassment and expense to the parties. But inasmuch as the difference does exist, I know of no way to avoid its consequences, whatever they may be. There seems but one course open to this court, consistent with its duty to itself and to the State, when its appellate power is invoked in the regular course of judicial proceedings, and that is, to exercise the jurisdiction which it believes itself to possess, according to its best judgment, whether that be well or ill founded.

Anderson v. Moe.

The remainder of the opinion relates to the question whether it is competent for Congress to authorize a non-resident plaintiff, who has voluntarily brought his suit in the State court, to obtain a removal. See 8 Am. Law Reg. N. S. 558.

ANDERSON v. MOE.

Circuit Court, Sixth Circuit; Eastern District of Michigan, June T., 1869.

TAXATION OF COSTS.-WITNESS FEES.

The fact that the deposition of a witness has been taken upon a dedimus potestatem, and is on file, forms no objection to the allowance of the travel fees of such witness, in the taxation of costs, if he attended and was examined in person. Under the fee bill of February 5, 1853, as well as under former laws, the successful party is entitled to tax travel fees of a witness who resides out of the State and more than one hundred miles from the place of trial, and who attends voluntarily, upon mere request.

Question of taxation of costs.

After the trial of this action, a question arose as to the amount to be allowed in the taxation of costs for the traveling fees of a witness,-Stafford. This witness resided in another district,-New York,-and more than one hundred miles from the place of trial. He was not subpoenaed, but attended voluntarily at the request of the plaintiffs.

The defendant objected to the allowance of traveling fees of the witness from his residence to the place of trial, and for returning :

Anderson v. Moe.

1st. Because his testimony by deposition had been taken and filed in the case.

2nd. Because the witness was not served with subpœna.

3rd. Because the travel was from beyond the district, and more than one hundred miles from the place of trial.

Alfred Russell, for the plaintiffs.

Charles L. Atterbury, for the defendant.

WITHEY, J.-The first objection is not allowable. If a witness is present at the trial his deposition ought not to be used. If the testimony was material, the party had a right to have the witness present before the court and jury, if his attendance could be procured.

The second objection is not well made, and that and the third will be considered together. If a witness resides in another State, and more than one hundred miles from the place of trial, a subpoena cannot be made effective; its service will be useless; it will afford no ground for an attachment. Is a party, therefore, obliged to take out a commission to take his testimony or if the personal presence of the witness be deemed essential, and it can be procured, is the party deprived of the benefit of the act of 1853, which allows witnesses' fees for each day's attendance in court, one dollar and fifty cents, and five cents per mile for traveling from his place of residence to said place of trial, and five cents per mile for returning?

Both questions are answered in the negative. No rule of court and no construction can properly be allowed to override the plain language and obvious import of this enactment. Under the act of 1799, it was held that traveling fees were allowable from the resi

Anderson v. Moe.

dence of the witness, although without the State, and more than one hundred miles from the place of trial. 3 Story C. Ct. 84. Before the passage of the act of 1853, it was held (5 McLean, 241), under the act of 1799, that, if the witness "attended voluntarily, or without summons, his fees cannot be charged against the losing party." This is but a literal rendering of the act of 1799, and, of course, it will bear the construction given it. That enactment allowed compensation to witnesses summoned," and not, as in the act of 1853, "to witnesses for each day's attendance, &c.," without reference to whether the witness be "summoned" or not.

Clearly, under the act of 1853, a witness who attends by procurement of a party because his testimony was deemed material, is entitled to the per diem of one dollar and fifty cents, and traveling fees from his place of residence, and for returning, provided he actually traveled so far to reach the court, as it would be from his residence to the court.

The taxation made in this case is proper.