Lewis v. England

• Decision Date: 12 June 1906
• Citation: 14 Wyo. 540,85 P. 1049
• Parties: LEWIS, AS ADMINISTRATRIX, v. ENGLAND, AS ADMINISTRATRIX
• Court: Wyoming Supreme Court

85 P. 1049

14 Wyo. 540

LEWIS, AS ADMINISTRATRIX, v. ENGLAND, AS ADMINISTRATRIX

Supreme Court of Wyoming

June 12, 1906

For former opinion, see 82 P. 869.

On motion to retax costs.

Motion to retax costs denied.

W. R Stoll, for the motion.

N. R Greenfield, Contra.

That the cost of making transcript of the evidence, when properly certified and presented, is taxable against the losing party under Section 4266, Rev. Stat., is not disputed. But here there is no certificate or statement of costs so incurred. All the expense of the transcript in this case was included in the charges of the special commissioner appointed to take the evidence, and was paid by the parties direct to the commissioner, before the hearing in the District Court; and each party was ordered by that court to pay one-half the costs. Under these circumstances the cost of the transcript is not again taxable. All costs, such as those here involved must be supported by affidavit, with the items enumerated, where they do not otherwise appear of record. (5 Ency. Pl. & Pr., 242; 11 Cyc., 156.) Costs of former trial abide the event of the suit in case of reversal and remanding for new trial. Having once been taxed the costs are not again taxable. (Albee v. Albee, 141 Ill. 550.)

POTTER, CHIEF JUSTICE. BEARD, J., and SCOTT, J., concur.

OPINION

POTTER, CHIEF JUSTICE.

The judgment of the District Court in this cause was reversed on error, and remanded for new trial. (82 P. 869.) Counsel for plaintiff in error has filed a motion for the retaxation of costs in this court, by which it is sought to have taxed as costs in favor of the plaintiff in error the cost of making a transcript of the evidence in the case, pursuant to the provisions of Section 4266, Revised Statutes of 1899. That section provides that when a judgment or final order is reversed the plaintiff in error shall recover his costs; and that there shall be taxed as a part of such costs the cost of making the transcript of the evidence in the case, which is to be computed at the rate allowed by law for making such transcript.

Our attention is called to the fact which was disclosed by the record that the evidence in the case had been taken before a special master commissioner to whom the cause had been referred for that purpose, and it is shown by the affidavit of counsel for defendant in error, which is not controverted, that the commissioner took and transcribed all the evidence, and that the cost thereof was paid to such commissioner by the parties, by order of the court below, and the same was taxed as costs in the case in that court. And it does not seem to be disputed that such evidence was transcribed and returned to the court below before hearing and judgment, and that at the time of judgment the transcription of the evidence was among the papers filed in the case as a part of the commissioner's report. The cause was heard and determined in the District Court upon the report of the commissioner in connection with such evidence.

It does not appear that any subsequent or other transcription of the evidence was made for incorporation in the bill of exceptions, but it is claimed on the contrary that all the costs of the transcript appearing in the bill were included in the...