Dissenting. — I concur in the majority opinion upon the merits of the case, but I dissent to that 'portion of the opinion in relation to the costs disallowed for the taking of the deposition for cross-examination of Edgar J. Vaughn, the plaintiff, and also in dividing the costs upon this appeal.
Th'e only record presented to this court as to the costs for taking the cross-examination of Edgar J. Vaughn consists in *679the cost bill itself and the affidavit supporting the same made by E. V. Boughton, and the affidavit of E. B. Whitla in opposition thereto. The item as shown upon the cost bill is as follows: "Expense in securing deposition of Edgar J. Vaughn for notary fee, stenographer, securing attendance of witness, swearing witness, return of witness and transcribing testimony, $15.15.” This court disallows this item. It appears from the transcript that this item was incurred in taking the second deposition upon the cross-examination of the witness Vaughn. The evidence of said Vaughn so taken by a deposition was admissible and considered proper, relevant, material and proper cross-examination and properly admitted in evidence at the trial. That being true, it should make no difference in the allowance of the expense of same as costs, whether it was taken at the same time that the original deposition was taken or afterward, because if taken when the original deposition was taken the same expense would necessarily have been incurred in taking and certifying the same by the stenographer, and would have been a proper charge as costs in said case, and if such evidence was proper and thereafter taken and the same expense incurred, I can see no reason why the same should be disallowed as costs of the trial. It is admitted in the evidence of E. V. Boughton, filed in support of the motion to retax, that at least six dollars could properly be taxed as such costs of said deposition, and under this admission, there can be no reason given that I can see why at least six dollars should not be allowed. The only additional costs that necessarily were incurred in cross-examining the witness at a time different from the time when the deposition was originally taken was in swearing the witness and certifying to his testimony by the notary. The act of the notary in writing down the questions and answers was the same as would necessarily have been incurred had such examination been taken at the time the original deposition was taken, and would have been properly chargeable as costs.
I am unable also to concur in the majority opinion which divides the costs of this appeal between plaintiff and respondents. The main appeal upon the merits of this case is decided *680in the majority opinion in favor of the defendants, while upon the appeal from the order overruling the motion to re-tax the costs, the order of the trial court is modified and the item of $15.15 is disallowed. The transcript consists of 237 pages, 210 of which contains the record of the appeal upon the merits, while only 10 pages of the transcript is devoted to the question of the appeal from the order of the trial court refusing to retax the costs, and even allowing the record containing the dross-examination ■ of the witness Yaughn as a necessary part of the appeal from the order, the total record thus made would be 27 pages, making at most the record on appeal from the order 27 pages. Yet the majority opinion taxes the respondents with half the costs of this appeal when the record necessary to have presented the appeal from the order was only 27 pages, while the record upon the merits, which also necessarily includes the deposition of the same witness, amounts to 237 pages, and yet the appellant is only charged with costs upon this appeal the same as is charged to the respondent. I cannot agree with this principle of adjustment of costs. To my mind it is unfair and unjust, and may often lead to -injustice in disposing of the question of costs.