— This is an appeal from an order taxing costs. It appears from the record that a memorandum of costs was filed as provided by section 4912 of the Revised Statutes, as amended by Session Laws of 1895, page 6. It also appears that the respondents, who were the plaintiffs in the court below, were -dissatisfied with the costs claimed, and made a motion for a taxation of the same. Said motion was heard, and the record shows that the only evidence considered by the judge in the hearing ivas the memorandum of costs duly verified by the attorney for the appellant, and a subpoena that had been issued in the ease. The judge taxed the costs, and in so doing struck out the witness fees and charges of four witnesses. The memorandum of costs introduced on the hearing of said motion made a prima facie ease for the appellant, and the respondents introduced no evidence whatever to overcome the ease -so made. The judge therefore erred in taxing said costs. The order taxing costs is reversed, and the case remanded. Costs of this appeal are awarded to the appellant.
Huston and Quarles, JJ., concur.