Whitaker v. Moran

LENNON, P. J.

This is a direct appeal from an order taxing costs. The record does not disclose the relief sought nor the defense relied upon in the action in which the costs complained of were claimed and allowed. The appeal comes to us solely upon a bill of exceptions containing only the evidence and proceedings had and taken upon the motion to tax. The action out of which the claimed costs arose was dismissed by the trial court upon motion of the plaintiff at the close of his case. Judgment was thereupon entered for the defendants. In due time they filed their verified and itemized memorandum of costs and disbursements, which totaled the sum of $1,027.50. Thereafter plaintiff and appellant filed a

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verified motion to tax the costs claimed, by striking out certain items upon the ground that they were not properly chargeable as costs in this, that they were either excessive or not necessarily incurred and disbursed in the defense of the action. The motion to tax was noticed to be heard and determined upon the papers on file in the action, and such testimony, oral and documentary, as the parties might desire to offer. Upon the hearing the plaintiff offered in support of his motion to tax an affidavit which in detail assailed each of the items objected to, and tended to show that such items called for fees and costs in excess of the sum allowed by law, and that such fees and costs were charged not only for the attendance of witnesses whose testimony was neither necessary nor material to the defense of the action, but were also charged for the procurement of documentary evidence—deeds, records, and depositions which were wholly unnecessary to the defense of the action, and entirely irrelevant and immaterial to the issues raised by the pleadings.

In opposition to the showing made by the plaintiff the defendants filed with the court an unverified statement of the particulars concerning the charges made for the taking of certain depositions, the charges made for the making of some seventy-eight certified copies of various recorded instruments, and the charges made for certified copies of the deposition of J. A. Waltman, and a transcript of the testimony of a witness (Joe Randall) taken in the “Argentine case.” Subsequently the plaintiff introduced in evidence upon the hearing of-the motion an additional affidavit, tending even more strongly than the first affidavit to show that the documents, depositions and transcript referred to were 'unnecessary and immaterial to the defense of the action. The record shows, however, that at the time of the submission of the motion to tax, the defendants “brought into court and left with the judge thereof” the certified copies of the instruments, depositions, and testimony, last above referred to.