Porter v. Tennessee Coal, Iron & R. Co.
| Decision Date | 15 April 1915 |
| Docket Number | 812 |
| Citation | 13 Ala.App. 632,68 So. 808 |
| Court | Alabama Court of Appeals |
| Parties | PORTER v. TENNESSEE COAL, IRON & R. CO. |
Rehearing Denied May 11, 1915
Appeal from City Court of Birmingham; John H. Miller, Judge.
Action by Leanna Porter, administratrix, against the Tennessee Coal Iron & Railroad Company. Defendant's motion to retax costs granted, and plaintiff appeals. Affirmed.
W.A. Denson, of Birmingham, for appellant.
Percy Benners & Burr, of Birmingham, for appellee.
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 against it (defendant), to wit, the 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.
Upon this showing of defendant, the taxation of the costs of these witnesses against it was prima facie excessive; and it became the duty of the court to correct the wrong by retaxing the cost of them all, instead of only half of them, as it did do, against the plaintiff, who appeals, unless the plaintiff then made proper and satisfactory showing, by affidavit or otherwise, of some real or reasonably apprehended necessity to use the witnesses. Forcheimer v. Kaver, 79 Ala. 285; Terry v. Montgomery, 166 Ala. 130, 52 So. 314; Briley v. Hodges, 3 Port. 335. In the last-cited case, it is said:
Briley v. Hodges, supra.
By this language the court is not to be understood, however, as holding or as intending to hold that the affidavit, or other showing, of the party summoning such unexamined witnesses, is conclusive of the purpose for which they were summoned. It may, like any other evidence a party may offer in a cause, be controverted or shown to be untrue. Porter v. Williams, 22 Ala. 525. Nor is the court to be understood as holding or as intending to hold that, when the successful party establishes the necessity, real or apprehended, for summoning the witnesses whom he did not examine, the costs of all of such witnesses, irrespective of their number, must be charged to the unsuccessful party. We have a statute, designed to prevent oppression and to protect the unsuccessful party, which puts a limitation upon the successful party as to the number of witnesses he may, at the expense of the unsuccessful party, have subpoenaed to establish a particular fact, which statute (Code, § 3679) reads:
"No more than two witnesses shall be taxed in any bill of costs, who were called to prove any one matter of fact, or, having been subpoenaed, were not examined, unless the court, upon a motion to retax the costs, should, in its discretion, consider that the circumstances of the case warranted the examining or summoning of more than two witnesses for the proof of a particular fact; or unless such witnesses were summoned or examined to assail or defend the reputation of a witness for veracity, or to assail or defend the character of a party when character is put in issue." Code, § 3679.
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.
On appeal, it will be presumed, in support of the determination of the lower court as to these matters, that it did not abuse its discretion, and that its action was free from error, unless the party complaining affirmatively shows to the contrary by the record. 11 Cyc. 168; Torrey v. Bishop, 104 Ala. 548, 16 So. 422; Beadle v. Davidson, 75 Ala. 494.
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 was so sufficiently impressed with these grounds as to decline to grant in toto 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 witnesses 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 with 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...
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