The fifth assignment of error is the admission of the testimony of J. O. Ducker as to the rendition of judgment in the Washington Circuit Court, the appeal by appellees to the Supreme Court, the reversal of said case in the Supreme Court,, the taxation of costs by the Clerk, etc. All of this was provable only by the record, unless it had been destroyed. There was no claim of that kind here.
The sixth assignment of error is the refusal to give instructions numbered one and two, asked by appellant. There was no error in refusing instruction No. 2. But instruction numbered one, correctly stated the law and should have been given The term “ costs ” has a known technical meaning, as well understood by lawyers as the.word “suit” or “prosecution.” The expression does not mean all the expenses incurred ; but it means expenses pending the suit, as allovoed or taxed by the court. Norwich v. Hyde, 7 Conn., 533. A court without jurisdiction of the subject matter of an action, cannot “allow or tax” costs incidental to such proceedings.
The Supreme Court had jurisdiction to hear and determine' the cause on appeal, and costs incurred there are legally taxable. Hightower v. Handlin & Venny, 27 Ark., 20.
Reverse and remand.