Terry v. Montgomery

52 So. 314 | Ala. | 1910

SAYRE, J.

This appeal is taken from a judgment of the circuit court retaxing the fees of certain witnesses in a case which had been tried in that court. The clerk liad issued certificates to the witnesses, and these were the items complained of. Elsewhere these certificates would be prima facie evidence of what appeared on their face.—Ward v. Chavers, 115 Ala. 427, 22 South. 116. Nevertheless, the court having determined that they had been improvidently issued, the presumption is that the judgment of the court in the premises is free from error, and the burden rests upon the appellant to show the contrary.—Beadle v. Davidson, 75 Ala. 494.

Complaint is made that the court reduced the fees which had by the clerk been certified to each of ten witnesses: The bill of exceptions contains a history of the main case, and a statement that on the trial of the motion to retax it was shown that four of the witnesses, had attended court on request of the defendant, and liad remained, in attendance during a number of days, which would entitle them to fees in excess of the amount allowed by the court, if they were entitled to fees for each day. It appears that this statement of what was shown on the trial of the motion — amplified as to details, but not covering any other matters — is a statement of all the evidence then and there offered. No doubt this evidence was offered as to them because during the same days there were causes pending and being tried in which they were interested as parties— in fact, by agreement their cases and the main case were tried together as one case, the same issue being involved in all of them.

The compensation certified by the clerk to the four witnesses who had cases of their own, and to three others, was contested on the ground that they had not been summoned or sworn in the cause. Whether they had been sworn does not appear; but that was a matter known to the court, and upon which the court had a right to act without proof. The taxation in the bill of costs of the fees of witnesses summoned by the successful party and not examined is prima facie excessive.—Forcheimer v. Kaver, 79 Ala. 285. There was no error in the action of the court in respect to the witnesses with whose cases we have been dealing.

As to the rest, wé do not know the amounts of the •certificates issued to them, nor does the record afford any information as to the theory of fact upon which their certificates were reduced by the court, if, indeed, they were'reduced. There are a number of reasons, the ■existence vel non of which was known to the trial court., which may have justified the action of the court in retáxing the fees of all the witnesses, as, for example, that they were not examifiéd,' or that more than two were unnecessarily called" to prove the samé facts, or that they had by order of the court been excused from attendance on some of the days for which they had charged. We will presume any of them, rather than impute error.

On the case as presented, we are unable to say that the judgment of the trial court was affected by error in any particular.

Affirmed.

Dowdell, C. J., and Anderson and Evans, JJ., concur.