Terry v. Montgomery

• Decision Date: 14 April 1910
• Citation: 52 So. 314,166 Ala. 130
• Parties: TERRY v. MONTGOMERY.
• Court: Alabama Supreme Court

52 So. 314

166 Ala. 130

TERRY v. MONTGOMERY.

Supreme Court of Alabama

April 14, 1910

Appeal from Circuit Court, Jefferson County; C. C. Nesmith, Judge.

Action between E. A. Terry and B. P. Montgomery. From a judgment retaxing the fees of certain witnesses, the former appeals. Affirmed.

George Huddleston, for appellant.

W. T Ward, for appellee.

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 had 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 So. 116. Nevertheless, the court having determined that they had been improvidently issued, the presumption here 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 had 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...