This is an appeal from taxation of costs. Both parties were present before the prothonotary when the costs were taxed. It is contended that the taxation of costs was premature, in that the jury fee was not paid, and, therefore, no final judgment was entered in the case. We do not agree with this. The parties were entitled to have their costs taxed after the verdict, but can only collect them after the case is finally disposed of.
No proof is offered to show that the finding of the prothonotary in regard to the witness costs was erroneous. It is contended that the witnesses at one of the terms, when it is claimed the case was continued before that week, were notified, but did not receive the notices and attended court. Under these circumstances, of course, the costs would follow the verdict. The same is true of the service of the subpoena. It was the duty of the plaintiff to subpoena such witnesses as she thought she needed at the trial, and if, before the time of trial, she discovered that some of them were not needed, we think the defendant should not complain that the witnesses were excused, as this saved the additional expense which would have been incurred by their attendance at court. It is also objected that three witnesses were subpoenaed to court, but not heard. At the trial, it is possible that the plaintiff found that she did not need these witnesses. In the absence of proof that they were not proper witnesses or that there was some abuse in having them attend court, we cannot refuse to allow the plaintiff their fees.
The appeal is dismissed and the finding of the prothonotary confirmed.
From George Ross Eshleman, Lancaster, Pa.