Forcheimer & Co. v. Kaver , 79 Ala. 285 ( 1885 )

CLOPTON, J..

Section 3146 of the Code provides: “ If the taxation of costs be excessive, by charging the costs of witnesses who were not examined, or by charging costs to an improper party, or taxing costs contrary to law, the party aggrieved may move the court for a re-taxation, setting forth the particulars in which the clerk has erred.” The section is a substantial affirmation of the rule laid down, independent of statute, in Porter v. Williams, 22 Ala. 525, where the successful party, who had summoned nineteen witnesses, and examined only one of them, was taxed with the costs of the other eighteen, on failure to show a reason to apprehend any necessity to use them. There is an implied prohibition to tax in the bill of costs witnesses summoned by the successful party, and not examined.

The successful party is entitled to full costs, unless otherwise directed by law ; and may have taxed against his adversary the costs of witnesses summoned by him but not sworn, on showing, by affidavit or otherwise, that the purpose is not to oppress his adversary, but because they may become material in consequence of the anticipated disclosure of certain facts. Briley v. Hodges, 3 Por. 333. The taxation in the bill of costs, of witnesses summoned by the successful party and not-examined, is prima facie excessive. On proof being made by appellant that the clerk had taxed the costs of witnesses summoned by appellee and not examined, the court should have re-taxed the costs of such witnesses, in the absence of any showing of a real or reasonably apprehended necessity to use them.

Reversed and remanded.