Sherman v. Circuit Judge , 52 McGrath 474 ( 1884 )

To compel the allowance of certain items of defendant’s bill of costs, in a case appealed from Justice Court, and after-wards discontinued by plaintiff.

Granted January 29, 1884.

Held, that (1) the statute permitting a circuit judge to •award costs, on an apx>eal from a justice, to either party (How. Stat., Sec. 7026) does not apply where the plaintiff has discontinued after the case has been sent back to the Oircuit for a new trial upon a reversal in defendant’s favor; in such cases defendant is entitled to costs as a matter of right.

(2) An appellant’s right to costs is fixed by the entry of a judgment for reversal with costs, if his adversary discontinues without taking a new trial.

(3) Witness fees must be taxed as costs in accordance with the showing made by the statutory affidavit attached to the bill of costs, unless there is a counter showing.

(4) When an appeal from the taxation of costs by the county clerk is taken to the 'circuit judge, the party appealing should specially except in writing to the allowances or disallowances complained of) and the bill of costs should then go upon those exceptions alone and on the same showing as was made to the clerk.