3 Port. 335 | Ala. | 1836
This cause comes here, by writ of error from the Circuit Court of Covington. By th©
The record does not discover whether there were any proceedings upon the order for a supersedeas, hence we infer there were none.
At the term of the Court next succeeding the rent dition of the judgment, the plaintiff moved for a re-taxation of costs in eleven of the cases, upon the grounds disclosed in his petition for supersedeas, stating his readiness to make them good, by proof.— This' motion was overruled by the presiding judge, assigning as a reason, that the Court could not, “at that time, take cognizance of the matter.”
The only questions for our examination, are, was the motion of the plaintiff proper? and, was it uiade? in time?
In Considering these questions, we have felt somewhat embarrassed by the decision of this Court, in the case of Smith vs. Donaldson.
It is true, that in most cases, it would be much easier to make proof of the facts, necessary to sustain the motion, immediately afrer the'trial of the cause; yet it does not follow, that in all cases, it would be impossible to find sufficient evidence, at an after term.
We cannot believe that a Court is authorised to repudiate a cause, for the reason that it may be difficult to make it out by proof. We are unadvised of any such test of the right of jurisdiction. The correct course is, to entertain the case, hear the proof, and allow it its proper influence.
It is very possible the supersedeas should not have been awarded, in as much as the objections to the taxation of costs, disclosed in the petition,^ were to be shewn by extrinsic proof, and do not appear upon the record.—Fryer vs. Austill.
In some of the States, the amount of the costs is ascertained, and a judgment in numero rendered, for their recovery. In these, where too much costs aré
Influenced by these considerations, we cannot but view a practice which refuses to entertain a motion, such as vve are consideringfat a term, succeeding the judgment, as calculated to effect injustice; and unau-thorised by any general rule of law, or statutory regulation.
It certainly cannot be maintained, that the unsuccessful party should not be taxed with the cost of witnesses summoned by his adversary, but not sworn. It frequently happens, that a party, under an impression, that the disclosure of certain facts, will become material, summons witnesses, which,, as the trial progresses, he is admonished that it is unnecessary to examine. In such a case, if it appears, by affidavit or otherwise, that the object of the party summoning, was not to oppress his opponant, but to prove mate-aial facts, the attendance of the witnesses should be allowed.—Hutchins v.Eden.
Though the reason employed in this opinion, is general, and may seem to oppose all points, adjudged in Smith vs. Donaldson, yet, we desire to be under
It rebaains but to say, that, in our opinion, the motion of the plaintiff should have been entertained; and, that the refusal to do so, is error.
The judgment is reversed, and the cause remanded.
Jan’y T. 1833
1 Stew 119
3Har M'H 101.
2 Taylor R. 265