Houston & G. N. R. R. Co. v. Jones

Citations

• 46 Tex. 133

Syllabus

<p>1. Costs, how taxed—Witness.—The amount clue each witness for attendance in a suit, should be separately taxed, and thus carried into the bill of costs accompanying the execution, so as to give the defendant each item of costs he is required to pay.</p> <p>2. Costs—Certificate.—The certificate given by the clerk, on the oath of a witness, showing the amount due him for attendance on a cause, is not an adjudication any more than the taxing of costs in the fee-book would be, but they are botii modes, prescribed by law, for the authentication of a claim, which is prima facie evidence of its correctness, when done, upon which suit may be brought against the party who summoned him, without waiting for the termination of the suit. If the party who procured the witness to be summoned should pay his certificate, the possession of it, receipted, would be evidence of 1ns right to receive the money when collected from the party against whom the judgment for costs is rendered.</p> <p>3. Costs op suit—Taxation of.—At a term of court, after judgment, the court, on motion of the party against whom costs had been adjudged, ordered a retaxation of the costs, excluding certain witness fees for informality of taxation; the costs were immediately paid to the clerk as retaxed; after this, during the same term, the costs were, on motion, again adjudged to be retaxed, so as to include the witness fees, the informality of the first taxation having been cured by the affidavits of the witnesses and tiie clerk’s certificate. There was no effort made to show that the charges of the witnesses were excessive or unfounded: Held, That the payment of the costs under the first order did not preclude the subseqtient judgment, which must be held, in the absence of testimony contradicting the clerk’s certificate and tiie affidavits of the witnesses, to be correct.</p> <p>4. Approved, Plores v. Thorn, 8 Tex., 381.</p> <p>5. Distinguished.—This case distinguished from Hardy v. DeLeon, 7 Tex., 467.</p>