Summary
In Henderson v. Williams, 120 N.C. 339, where the defendant's witnesses were present when the case was called for trial for a nonsuit, the cost of such witnesses, not to exceed of course two to prove any single fact (The Code, section 1370), were taxed against the plaintiff because the defendant "had no opportunity to swear, examine or tender his witnesses by reason of the nonsuit."
Summary of this case from Sitton v. Lumber Co.Opinion
(February Term, 1897.)
Practice — Costs — Nonsuit — Witness Not Sworn.
Where a defendant's witnesses are present when the case is called for trial but are not sworn or tendered because plaintiff takes a nonsuit, the costs of such witnesses are properly taxable against the plaintiff.
This was a motion made by the plaintiff before Clerk of the Superior Court of Wilkes, to re-tax bills of cost theretofore made out and taxed against the plaintiff, and from the judgment of the Clerk the plaintiff appealed to Greene, J., at chambers. The summons issued in the original cause 9 July, 1895, returnable to Fall Term, 1895. The complaint, alleging injury to plaintiff's land, was filed 15 July, 1895. The answer denying the allegations of plaintiff's complaint was filed at Fall Term, 1895. At Spring Term, 1896, of WILKES, the plaintiff asked for a continuance for the want of the testimony of Henry Brown, which continuance Norwood, J., granted upon the plaintiff paying the cost of the term.
At Fall Term, 1896, of WILKES, the case was called, and the plaintiff in open court took a nonsuit.
On Monday, 18 January, 1897, the plaintiff, through his attorney, L. S. Benbow, came before the Clerk and made a motion to re-tax the cost in the case upon the grounds that no witness should (340) be allowed to prove his attendance, except those who were sworn, examined or tendered against the party cast. No witness was sworn.
After hearing and considering the motion, the clerk adjudged that, as the case was disposed of at term time he had no jurisdiction to order cost re-taxed.
From this ruling the plaintiff appealed to Green, J., at chambers, who held that the clerk erred in holding he had no jurisdiction to order the cost re-taxed. And the cause was remanded to the clerk, who was commanded to re-tax all the cost, from commencement of the action entire, and in so doing to allow no witnesses subpoenaed by the defendants to be taxed against the plaintiff, except those who were sworn, examined or tendered.
From this judgment the defendant appealed.
Messrs. Glenn Manly and W. W. Barber for defendants (appellants).
No counsel contra.
The summons was returnable to Fall Term, 1895. At Fall Term, 1896, the plaintiff took a nonsuit, and judgment was entered against him for costs. The defendants had witnesses in attendance and their tickets were taxed against the plaintiff, who, at next term, moved to re-tax the costs and to exclude the defendant's witnesses' cost on the ground that they were not sworn, examined or tendered against the plaintiff. His Honor allowed the motion and directed the clerk accordingly.
This was error. The case was brought for trial at Fall Term, 1896, and the defendant properly had his witnesses present. He had no (341) opportunity to swear, examine or tender his witnesses by reason of the nonsuit. It is where a trial is had and the witnesses are not sworn or tendered that their costs cannot be taxed against the party cast. Loftis v. Baxter, 66 N.C. 340. When such costs are allowed, see Code, secs. 528 and 532.
Error.
Cited: Sitton v. Lumber Co., 135 N.C. 541; Brown v. R. R., 140 N.C. 154; Herring v. R. R., 144 N.C. 210; Chadwick v. Ins. Co., 158 N.C. 382.