25-1227. Witnesses in civil cases; compulsory attendance; distance required to travel; fees and expenses allowed.

435 words·~2 min read·/ne/chapter-25/25-1227

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

(1)Witnesses in civil cases cannot be compelled to attend a trial out of the state where they are served or at a distance of more than one hundred miles from the place of their residence or from the place where they are served with a subpoena, unless within the same county. Witnesses in civil cases shall not be obliged to attend a deposition outside the county of their residence or outside the county where the subpoena is served.

(2)A district court or county court judge, for good cause shown, may, upon deposit with the clerk of the court of sufficient money to pay the legal fees and mileage and reasonable expenses for hotel and meals of such a witness who attends at points so far removed from his or her residence as to make it reasonably necessary that such expenses be incurred, order a subpoena to issue requiring the trial attendance, but excluding a deposition appearance, of such witness from a greater distance within the state than that provided in subsection

(1)of this section. Mileage shall be computed at the rate provided in section 81-1176 . The subpoena shall show that it is issued under the provisions hereof. After the appearance of such witness in response to any such subpoena, the judge shall enter an order directing the payment to the witness from such deposit of such legal fees, mileage, and the actual expenses for hotel and meals incurred by such witness. If such deposit is not adequate for such purpose, the judge shall direct the party procuring the issuance of such subpoena to pay to such witness the deficiency.

(3)No other subpoena except from the district court or county court can compel a witness to attend for examination on the trial of a civil action, except in the county of his or her residence, nor to attend to give his or her deposition out of the county where he or she resides, or where he or she may be when the subpoena is served upon him or her.

Section is valid and constitutional. Brannan v. Chicago & N. W. Ry. Co., 118 Neb. 503, 223 N.W. 21, 225 N.W. 474 (1929).

Mileage is not allowed except for distance actually and necessarily traveled. Smith v. Bartlett, 78 Neb. 359, 110 N.W. 991 (1907).

This section and Neb. Ct. R. of Discovery 32(a)(3)(B) make distance and whether the witness can be reached by the court's subpoena power the conclusive test of availability, unless the proponent of the testimony arranges the unavailability. Burke v. Harman, 6 Neb. App. 309, 574 N.W.2d 156 (1998).