#### SAMBO, Respondent, v. SEMMLER, Appellant.

(266 N. W. 255.)

(File No. 7799.

Opinion filed March 30, 1936.)

*M. C. Laseil,*of Aberdeen, for Appellant.

*Miller & Shandorf,*of Mitchell, for Respondent.

FOLLBY, P. J.

This case was here on a former appeal. The appeal was dismissed. *61*S. D. 228, 248 N. W. 197. On rehearing the appeal was reinstated, and the judgment appealed from reversed, and a new trial awarded. 61 S. D. 459, 249 N. W. 817. The case was set for retrial on the 23d day of April, 1934. When *247it was called for trial the plaintiff moved to dismiss the action without prejudice. This motion was granted and a judgment of dismissal entered. This judgment contained the provision: “That said defendant, Solomon Semmler, have and recover of the plaintiff his costs and disbursements herein, in the sum of-dollars which costs are to be hereafter taxed by the Clerk and by her inserted 'herein.”

Pursuant to such order the clerk taxed the following items of cost:

Statement of Disbursements and Costs

Proceedings before notice of trial .. .■...................$ 5.00

Proceedings after notice and before trial ............... 3.00

Trial fee, issue of fact ................................. 5.00

Clerk of the court fees, second trial..................... 5-°°

Costs in two examinations before trial .................. 4.00

For all proceedings after granting and before new trial.... 5.00

Affidavits (21 notary fees) ............................. 5.25

Affidavits (21 making) ................................ 21.00

Transcript of testimony ............................... 128.00

Postage ............................................. 3.20

Express on papers ..................................... .60

Witness fees — 22 days — 1026 miles ...................... 146.60

Total costs and disbursements ..................$331.65

The plaintiff, being dissatisfied with certain items contained in the above schedule, appealed to the trial court from such taxation. Upon hearing of such appeal by the trial court, the court entered an order which, in part, is in the following language:

“And the court having examined the bill of costs and the objections thereto and listened to the oral argument of counsel and examined the briefs submitted, now makes the following findings:

“That the costs taxed by the defendant, Solomon Semmler, for the first trial which was held on the 15th day of October, 1931, and was appealed to the Supreme Court and reversed by the Supreme Court, are not proper costs in this matter, but that the costs taxed for the second trial, on the 23rd day of April, 1934, and taxed by the defendant, Solomon 'Semmler, are proper costs taxable against the plaintiff. That the items of $5.00 before trial, $3.00 *248after notice, and1 $5.00 for the trial of the issue of fact 'are not taxable b}r this defendant as they were taxed in the former trial by the plaintiff.

“Now, therefore, it is hereby ordered that the following items are taxable by the defendant, .Solomon Semmler, to wit:

Clerk of the court fees, second trial ....................$ 5.00

Notary fees.......................................... 5.25

For all proceedings after granting and before new trial. ... 5.00

Transcript of testimony and appeal to the Supreme Court. . 128.00

Postage ............................................. 3.20

Express on papers.................................... .60

Witness fees, second trial, as shown in the last list of witnesses’ fees ...................................... 72.20

Total .......................................$219.25

“It is further ordered that all the other items of costs as' taxed by the Clerk are disallowed.”

No question, of course, is raised as to the items taxed by the court, but the court excluded the following items:

“Affidavits (21 making), $21.00.

“Proceedings before notice of trial, $5.00.

“Proceedings after notice and before trial, $3.00.

“Trial fee, issue of fact, $5.00.

“Costs in two examinations before trial, $4.00.

“Costs of defendant’s witness fees at the first trial, $74.40.”

 We believe the appellant is entitled to the items excluded byr the court, except the $21 for twenty-one offidavits and $4 for two examinations before trial. The defendant having prevailed on the second trial is entitled to tax the costs the same as though he had prevailed at the first trial. Under the provisions of paragraph 2 of section 2601, Rev. Code 1919, the defendant is entitled to tax costs for all proceedings before notice of trial $5, and for all proceedings after notice and before trial $3; and by paragraph 3 of said section, the defendant is entitled to tax $5 for all proceedings after granting of and before such new trial. As to the two items of $4 for two examinations, and $21 for twenty-one affidavits, we think they should be disallcWed. There is nothing to show that these two items were necessary disbursements. *249This leaves only the item of $74.40 for the attendance of the defendant's witnesses at the first trial. These witnesses were in attendance and testified at the first trial, and we know of no reason why this item should not be allowed.

With the two items of $4 and $21 stricken out, there is left a ■balance of $306.65, which amount will be allowed to the defendant.

The order appealed from is reversed, and the cause will be remanded to the trial court, with directions to modify the amount of costs to be taxed by substituting $306.65 for $331.65.

All the Judges concur.