74 S.E. 115 | N.C. | 1912
The facts are sufficiently stated in the opinion of the Court by Mr.Chief Justice Clark. This is a motion to retax a bill of costs. The (381) action was for a small sum. At the conclusion of plaintiff's testimony the judge nonsuited the plaintiff and the bill of costs as taxed amounts to $262.25, including fees to five expert witnesses and mileage of witnesses from Buncombe, New Hanover, Guilford, Durham, and other counties. The judgment entered by his Honor was "that the defendant recover against the plaintiff and surety on the prosecution bond the cost of this action to be taxed by the clerk (including an expert fee of $10 to each of the following witnesses: Drs. W. L. Dunn, W. H. Honeycutt, J. H. Borneman, Charles T. Harper, and A. W. Goodwin)."
The first objection raised by the defendant is that a subsequent judge has no right to review the action of the trial judge, much less can *320
the clerk of the court do so. An examination of the judgment, however, shows that the taxing of the costs was to be done by the clerk himself and that the judge simply fixed the amount of the expert fees and ordered plaintiff to pay the costs. The same point was raised in In re Smith,
At common law, in civil cases neither party recovered costs and each side paid its own witnesses. Costin v. Baxter,
In Brown v. R. R.,
In Herring v. R. R.,
In the present case the plaintiff had examined her witnesses when on motion of the defendant a nonsuit was ordered. The defendant could and should then and there have tendered its witnesses and have given the plaintiff an opportunity to examine them and strengthen her case or to demonstrate their immateriality, if it was sought to (383) charge plaintiff with them.
Originally, the court could not fix an allowance for expert witnesses, but by an amendment to the statute which is to be found in Revisal, 2803, the court now has such powers. The allowance of $10 to each of the five expert witnesses, four of whom were summoned from distant counties, is resjudicata as to the amount and is properly taxable at least against the party summoning such witnesses, and to that extent it is not reviewable on a motion to retax. But the question whether the evidence of all five of these experts was material, and whether or not more than two of them were not to testify to the same material point as other witnesses, are matters which were not settled by the order fixing the amount allowed the experts nor by adjudging that the plaintiff pay costs. That means only legal costs, and their legality can be considered on a motion to retax.
In Porter v. Durham,
The bill of costs should be retaxed in accordance with this opinion.
Reversed.