Marks v. Graham , 2 Ky. L. Rptr. 222 ( 1881 )

Opinion by

Judge Cofer:

The appellant accepted and used as part of his bill of exceptions the transcript made by the appellee, and the statute is peremptory that the fees of the reporter for taking notes and making transcripts shall be fixed by the judge and paid forthwith by the party or parties at whose instance the same was ordered. Whether the appellant formally ordered the transcript or not, the appellee made it and the appellant received and used it, and the substance and effect of the statute is that one who receives the work of the reporter and applies it to his purposes shall pay for it. We entertain no doubt of the power of the court to compel payment by rule as in any other case in which the allowance to an officer is to be made by the court.

Edwards & Seymour, -for appellant. Morris St. Joseph, for appellee.

The provision that the fee of a reporter shall be taxed in the costs can not apply when the person at whose instance the notes are taken or a transcript is made is the unsuccessful party in the action. The taxation of costs is never made to include anything except the costs incurred by the successful party. Each party is liable to the officer performing services for him, and in case he succeeds in the action the costs so incurred are taxed against the adverse party. If the appellant had prosecuted his appeal successfully, and had finally succeeded in the action, the allowance to the reporter for the transcript of the evidence would have been taxed in the cost against his adversary; but as that was not done there is no authority to tax it against them.

Judgment affirmed.