(77 South. 938)

#### CENTRAL OF GEORGIA RY. CO. v. McGILVARY.

(4 Div. 537.)

(Court of Appeals of Alabama.

Jan. 15, 1918.)

1. Costs <&wkey;184(3) — Taxing Costs.

Under Code 1907, § 3684, providing for re-taxation of costs, if the taxation is excessive, by charging the costs of witnesses who were not examined, where defendant offered proof that the witnesses named in the motion to retax the costs had been subpoenaed by plaintiff, but not examined, he made a prima facie case.

2. Costs <&wkey;2BL-TAXiNG Costs.

Where defendant moved to 'retax costs of witnesses subpoenaed, but not examined, by plaintiff, an affidavit merely stating that plaintiff did not subpoena any witnesses for the purpose of oppressing defendant, but subpoenaed all of them in good faith to meet every contingency that might arise in the cause, was wholly insufficient to overcome the prima facie case which defendant made by showing that witnesses were subpoenaed and not examined.

3. Costs <&wkey;214^-MoTioN to Retax — Hearing.

Motion to retax costs will not be denied because made at tbe term succeeding that at which the case was tried.

4. Costs <&wkey;-4 — Taxation — Discretion of Court.

Gen. Acts 1915, p. 598, making costs taxable in the discretion of the court, as justice and equity may require, does not affect Code 1907, § 3684, making taxation of costs excessive, if costs of witnesses not examined are charged to the unsuccessful party.

Appeal from Circuit Court, Barbour County; A. A. McDonald, Special Judge.

Action by Hamp McGilvary, by bis next friend, against tbe Central of Georgia Railway Company. On mótion of defendant to retax tbe costs. Motion granted in part, and in part denied, and defendant appeals.

Reversed and rendered.

G. L. Comer, of Eufaula, for appellant. Winn & Winn, of Clayton, for appellee.

BRIGKEN, J.

Appellant made a motion in tbe court below to retax tbe cost of issuing subpoenas, serving same, and tbe witness fees of a number of witnesses wbo were subpoenaed by tbe plaintiff, but not examined as witnesses, on tbe ground that the taxation of those costs was excessive. The court granted tbe motion only as to one witness, who did not appear in obedience to tbe subpoena, but refused it as to all tbe others.

[1] On tbe trial of tbe motion, appellant offered proof that the witnesses named in tbe motion had been subpoenaed by tbe plaintiff, but not examined. This proof made a prima facie case for movant, under section 3684 of tbe Code of 1907. Porter v. Tenn. Coal, Iron & R. R. Co., 13 Ala. App. 632-634, 68 South. 808, and cases cited.

The appellee undertook to overcome the prima facie case made by appellant by introducing tbe affidavit of one of tbe attorneys wbo represented tbe plaintiff on tbe trial of tbe cause, in which be deposed:

> “That the plaintiff did not subpoena any witnesses in the above cause for the purpose of oppressing the defendant, but all of the witnesses subpoenaed in said cause were subpoenaed in good faith to meet every contingency that might arise in said cause. And affiant further says that any witnesses subpoenaed, but not examined, were not for the purpose of oppressing the defendant, as previously stated, but to meet any phase of the case that might arise.”

[2] This affidavit was wholly insufficient to overcome tbe prima facie ease made by movant. It simply showed the mental status of tbe plaintiff, setting forth no facts to show tbe bona fides of that status. In other .words, it presented no issuable fact. Its condemnation is found in tbe language used by this court, speaking of a similar affidavit, in tbe case of Porter v. Tenn. Coal, Iron & R. R. Co., supra, where it is said:

> “The first ground is a mere general one, and need not be separately considered, merely stating in sweeping terms, as it does, that none of said witnesses were subpoenaed for the purpose of oppressing defendant or of unnecessarily increasing the cost. This was, it is true, a proper, if not to say a necessary, averment, in conjunction with other averments setting forth in detail why and for what purpose said witnesses were subpoenaed, but in and of itself, and standing alone, it was certainly insufficient to acquit plaintiff of the implication of oppression, averring, as it did, only a mental status, and failing to aver facts to show the bona fides of that status and upon which issue could be taken.”

[3] There is no merit in tbe point that tbe motion was made at tbe subsequent term of tbe court at which tbe case was tried. Lockwood et al. v. Thompson & Buchmann, 198 Ala. 295, 73 South. 504; Briley v. Hodges, 3 Port. 335.

[4] Appellee contends that tbe action of the court in denying this motion was in the exercise of a discretion conferred by tbe act approved September 16, 1915 (General Acts 1915, p. 598). This act is amendatory of section 3662 of tbe Code, and tbe discretion conferred by it canpot be exercised arbitrarily, but only “as justice and equity may require.” It was certainly not tbe intention of the Legislature in enacting that. *345statute to strike down section 3684 of the Code, which makes the taxation of costs excessive anu oppressive by charging the costs of witnesses who were not examined to the unsuccessful party unless a sufficient excuse is shown for not examining them.

It results, therefore, that the judgment appealed from must be reversed, and one will be here rendered granting the motion.

Reversed and rendered.