                                  NO. 85-431
               IN THE SUPREPE COURT OF THE STATE OF MONTANA

                                     1986




HAROLDEEN WITTY,
                   Plaintiff and Respondent,
         VS.

HARRELL W. PLUID,JR., and
LYLE PLUID,
                   Defendants and Appellants.




APPEAL FROM:       District Court of the Nineteenth Judicial District,
                   In a-nd for the County of Lincoln,
                   Honorable Robert M. Holter, Judge Presiding.

COUNSEL OF RECORD:

         For Appellant:
                   Murphy, R.obinson, Heckathorn C Phillips, I. James
                   Heckathorn, Kalispell, Montana

         For Respondent:
                   Measure, Ogle & Ellingson, Jeffrey D. Ellingson,
                   Kalispell, Montana




                                     Submitted on Briefs:   Dec. 18, 1985
                                       Decided:   February 20, 1986


Filed:     FLB   ;? i,   1986



                   -
                                     Clerk
Mr. Justice F2illiam E. Hunt, Sr. , delivered the Opinion of
the Court.


     Appellants      appeal   from   the   judgment of     the   Lincoln
County District Court ordering appellants to pay respondent's
expert witness fees.
     We reverse.
     The sole issue on appeal is whether the order of the
District     Court   directing   appellants    to   pay    respondent's

expert witness fees is proper.
     Respondent brought an action in the District Court and,
after a jury trial, prevailed on the merits.          Respondent then
submitted to the trial court her memorandum of costs a.nd
disbursements.
     The appellants objected, moved to strike the cost bill
as frivolous, moved the court to tax costs in accordance with
5 25-10-502, MCA, and impose sanctions pursuant to Rule 11,
M.R.Civ.P.    Following submission of briefs and. a hearin.g, the
trial court issued its order allowing respondent her costs
for expert witnesses.         The court awarded costs for four
expert witnesses in the amount of $1,000, $1,700, $500, and
$410.     This appeal followed.
     We    have   addressed   this    issue before    in    Swenson v.
Buffalo Building Co.      (Mont. 1981.1, 635 P.2d 978, 38 St.Rep.
1588.     In Buffalo, the appellant appealed the trial court's
allowance of $1,500 for expert witness fees.                We stated:
     A verified memorandum of costs and disbursements is
     prima   facie   evidence  that   the   items   were
     necessarily expended and are properly taxable,
     unless, as a matter of law, they appear otherwise
     on the face. The burden of overcoming this prima
     facie case rests upon the adverse party.
635 P.2d at 985.      In the instant case, respondent's costs for

expert witnesses are not properly taxable as a matter of law.
     Witness       fees    are    controlled   by      statute.      Section
26-2-501, MCA, states:
     Witnesses in courts of record - before certain
                                         and
     court officers.  (1) W i t n e s s fees are as follows:
     (a) for attending in any civil or criminal action
     or proceeding before any court of record, referee,
     or officer authorized to take depositions or
     commissioners to assess da.mages or otherwise, for
     each day, $10;       ...
     Section 26-2-505 states:
          Expert witnesses. An expert is a witness and
     receives the same compensation as a witness.
     The respondent argues that 5 25-10-201, MCA, gives a
district court the discretion to               award    costs     for expert
witnesses.    That section states:

     Costs generally allowable. A party to whom costs
     are awarded in an action is entitled to include in
     his bill of costs his necessary disbursements, as
     follows:
     ...   (9) such other reasonable and. necessary
     expenses as are taxable according to the course and
     practice of the court or by express provision of
     law.
     Where     there      are    two   statutes     concerning     the   same
subject,     the   particular      controls    the     general.      Section
1-3-225, MCA.      - - State Consumer Counsel v. Department
                   See also
of Public Service Regulation (1979), 181 Mont. 225, 593 P.2d


     In this case, we have a statute specifically limiting
expert witness fees to $10 per day.               This statute controls
the general statute authorizing a district court to award
costs in accordance with the course and practice of the
court.
     Of course, a party can pay an expert witness any fee he
or she chooses, but a district court cannot award costs in
excess of $10 per day per witness.
     Therefore,          we   hold    that   the    trial     court      abused    its
discretion     in    ordering        appellants         to   pay   the    costs    of

respondent's    expert witnesses in excess of $10 per day per
witness.     This matter is remanded to the District Court with
instructions        to    enter      judgment      in    accordance      with     this
opinion.




We Concur:
                /


    Chief Justice
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