68 So. 808 | Ala. Ct. App. | 1915
The only error assigned is the action of the trial court in granting in part the motion of appellee, which was defendant below and the unsuccessful party to the suit, to retax certain items of the costs included in the bill of costs, totaling $180.90, of 54 named witnesses, who, it was shown by defendant without dispute, on the hearing of the motion, had been summoned by the plaintiff appellant, but who had not been examined at all on the trial.
And, even when it is made satisfactorily to appear that the. witnesses were summoned to assail or defend the reputation of a witness or the character of a party, and that it was necessary, or reasonably appeared to be so, to the proper prosecution or defense of the suit, the law does not give to the successful party carte blanche to summons, at the expense of the opposite party, as many witnesses to this end as he may choose. He is bound to exercise a proper discretion as to the number he summonses even for this purpose. If he subpoenas an unnecessary number, he may be required, although successful, to pay the costs of so many of them as were not reasonably necessary.—11 Cyc. 118, 119, and. authorities next cited herein. Certainly he may. summons, as a matter of right, as many as the opposite party subpoenas on such collateral issue of reputation or character (Porter v. Williams, 22 Ala. 526); but how many he may summon in excess of this on that issue in a particular case, if at all, is a matter which must necessarily, like the question as to how many he may summon in excess of two to prove a particular fact, be left largely to the discretion of the judge before whom the trial was had and who is consequently in a better position to pass on it than a reviewing court.—Code, § 3679; Esselman v. Brown, 2 Sneed (Tenn.) 303; Holmes v. Johnson, 33 N. C. (11 Iredell’s Law) 55; Randolph v. Perry, 2 Port. 384, 385, 27 Am. Dec. 659; Porter v. Williams, supra.
The only showing made by the plaintiff appellant in -opposition to defendant’s said motion to retax the costs of these 54 witnesses, shown to have been-so- summoned by plaintiff but not examined, consisted of an affidavit filed by her, which contained, as her alleged reasons and excuse for summoning said witnesses and for dispensing with, their, testimony, 6 separate and distinct grounds. The court Avas so sufficiently impressed with these grounds as to decline to grant in toto the defendant’s motion to retax against plaintiff the cost of all these witnesses (54), but granted it in part and retaxed her with half, thereby requiring defendant to pay for the other half; that is, for 27 of the plaintiff’s Avitnesses whom she had summoned but did not examine. She (the plaintiff) insists that on the showing so made (the affidavit mentioned) we should say that the court erred, and that she should not be Charged Avith the costs of any of the 54 witnesses. We cannot so agree, and are •of opinion that, when the several grounds of excuse or justification for summoning said witnesses, as set forth in plaintiff’s said affidavit, are examined and analyzed in the light of the principles hereinbefore announced, the reasons of. our conclusion will be apparent.
The first ground is a mere general one, and need not be separately considered, merely stating in sweeping terms, as it does, that none of said witnesses were subpoenaed for the purpose of oppressing defendant or of unnecessarily increasing the cost. This Avas, it is true, a proper, if not to say a necessary, averment, in conjunction with other averments setting forth in detail why and for Avhat purpose .said witnesses Avere subpoenaed, but in and of itself, and standing alone, it was ■certainly insufficient to acqnit plaintiff of the implica
But even taking as true the averments of plaintiff’s affidavit in this particular, and assuming that it sIioavs sufficient excuse for not examining said witness, it certainly shows none for subpoenaing them, unless possibly by inference, which we may draw, as a “glittering generality,” to the effect that they were summoned to rebut evidence which defendant had introduced on previous trials, but failed to introduce on this trial; but this ground of the affidavit signally failed to point out what that evidence was and in what way it was to be rebutted, Whether by a denial of the testimony of defendant’s
Affirmed.