This is an appeal from a judgment rendered on a rule to have the costs incident to a boundary suit taxed against the defendant and to have a writ of fi. fa. issued therefor.
In the boundary suit the judgment condemned the defendant to pay all costs except the costs occasioned by the judicial surveys, which last named costs were to be borne equally by the two litigants.
The total costs as shown by the bill of the clerk of court amounted to $1,641.59. This included the surveyor's fees amounting to $427.14.
After the judgment in the boundary suit became final the defendant deposited with the clerk of court $978.38, and declined to pay any further sum, contending that the amount paid was even more than it was liable for. *Page 560
On the other hand, the plaintiff contends that under the judgment the defendant is liable for all of the costs shown on the clerk's bill except one-half of the surveyor's fees.
The judgment on the rule did not designate what items on the clerk's bill should be paid by defendant, but in general terms ordered that:
"The plaintiff and defendant pay equally the fees and expenses of the judicial surveyor's and their assistants, together with the costs of making and filing the procès verbals of survey, and all other costs be paid by defendant."
The defendant filed no answer to the rule, and we find no evidence in the record except the bill of costs made in the name of the clerk of court, which purports to itemize all the costs incurred in the suit or as a result of the suit, and a certificate of the clerk of court filed in this court.
It is contended on behalf of defendant that all of the costs incurred after the first survey should be deemed to be costs "occasioned by the surveys," and that under the terms of the judgment should be apportioned equally.
We do not so understand and do not so interpret the judgment.
The only costs occasioned by the surveys were the fees of the surveyors, the expense incident to the surveys, and the making and return of the procès verbal of the surveys. These charges were to be equally divided. All of the other costs were the result of and incident to the suit, which the plaintiff had the right to institute and prosecute to final judgment in order to determine the true boundary line between the properties. These costs were in no manner occasioned by the surveys, and cannot properly be said to be a result of the surveys. The original degree in the boundary suit very properly held that the defendant should bear all such costs.
It is further contended that the defendant cannot be charged with the per diem *Page 561 and mileage of more than six witnesses summoned by the plaintiff, whereas he is charged on the clerk's bill for the per diem and mileage of 17 witnesses.
The contention is well founded as a matter of law. Code of Practice, art. 472. And it appears to be a fact that the names of more than six witnesses with the amount paid each appear on the bill.
The rule, however, does not apply to witnesses summoned or appointed by the court as experts.
"Compensation allowed to experts, auditors and judicial arbitrators is, by article 552 Code of Practice, to be paid, as well as the taxed costs, by the party cast." Lobdell v. Bushnell, 27 La. Ann. 394.
There were a number of witnesses who testified as experts, and there seems to have been no objection to the amount paid them, and which the lower court approved on the trial of the rule.
The clerk's certificate, which has been filed in the transcript, shows the names of 17 witnesses summoned by the plaintiff, the order in which they were summoned, and the amount paid each. The first-named witness cannot be included in the first six, because he must be regarded as an expert witness and not within the rule of limitation.
The amount paid the first 6 witnesses, excluding the expert, was $25, and this should be taxed against the defendant.
The amount paid the other 10 witnesses was $30.20, and should be paid by the plaintiff and not by the defendant.
The appellee has filed a motion to strike from the record the certificate of the clerk relating to the number of and amount paid the witnesses, for the reason that it formed no part of the transcript and was original evidence sought to be filed in this court.
We think, however, the matter was an issue before the lower court, and the record of *Page 562 the boundary suit, if not actually introduced on the trial of the rule to tax costs, was before the court and could and should have been considered, because a rule to tax costs is but an incident and a part of the original proceedings in which the costs were incurred.
The judge therefore had before him the original summons of the witnesses and was in a position to determine the ones summoned by the plaintiff and the order in which the witnesses were summoned.
The certificate of the clerk was but the verification of a fact shown by the record, and which could have been ascertained by any one examining the record.
The appellant filed a motion to have the transcript corrected so as to show the facts stated in the certificate referred to, and, while no certiorari was issued by this court, still, the certificate has been presented along with the motion and we think is properly before the court.
Another contention made is that the defendant is charged with the amounts paid expert witnesses, who gave testimony but who had not been summoned, and for that reason defendant cannot be held liable for the amounts paid said witnesses or experts.
We think there is no merit in the objection urged. The witnesses were produced by the plaintiff, gave testimony as experts in the case, and their fees were properly taxed against the defendant.
Another objection is as to the costs for taking testimony under commissions.
Article 552, Code of Practice, provides that the costs to be paid by the party cast include not only the taxed costs, but also all the expenses incurred in taking testimony by commission and the compensation allowed for their services to such experts * * * as may have been appointed in the suit.
As already noted, the total costs amounted to $1,641.59. Of this amount $427.14 was for surveyor's fees and expenses, one-half of *Page 563 which was taxed against the plaintiff. This left $1,428.02 which the trial judge held should be paid by defendant, less the sum of $978.38 deposited with the clerk by defendant. The balance, $449.64, should be further reduced by the sum of $30.20 as heretofore indicated.
For the reasons assigned, the judgment appealed from is amended by allowing the said credit for $30.20, and, as thus amended, said judgment is affirmed, the costs of this appeal to be paid by plaintiff.
O'NIELL, C.J., is of the opinion that the judgment should be affirmed.
OVERTON, J., takes no part.