Cureton v. Garrison, 111 N.C. 271 (1892)

Sept. 1892 · Supreme Court of North Carolina

111 N.C. 271

M. M. CURETON v. JOHN GARRISON.

Costs — Witnesses—Practice

1. A motion to retax costs may be beard by the Judge in the first instance, or on appeal from the Clerk.

2. Only the costs of witnesses duly subpoenaed and examined or tendered can be taxed against the party cast, and then not more than two to prove one fact.

This was a MOTION to retax the costs, heard at Polk Superior Court by Hoke, J.

The Court ruled that if the witnesses were not sworn, and examined or tendered, even though attending under subpoena, and though they would have given material evidence, their fees could not be taxed against the losing party.

Plaintiff excepted, and appealed.

No counsel for plaintiff. '

Mr. M. II. Justice, for defendant.

Clark, J.:

Where a witness, though duly subpoenaed, is-neither examined nor tendered to the opposite party on the trial, his attendance can be taxed only against the party who summoned him. Loftis v. Raxter, 66 N. C., 340; Wooley v. Robinson, 52 N. C., 30. Besides, not more than two witnesses-summoned by the successful party to prove a single fact can be taxed against the party cast. The Code, § 1370; State v. Massey, 104 N. C., 877. The motion to retax can be made before the Clerk who has made the taxation, whence an appeal lies to the Judge at Chambers ; or it can be made in the first instance before the Judge at term'time by virtue of his supervisory power over the action of the Clerk. In re Smith, 105 N. C., 167.

No Error.