On Motion eor Rehearing.
Mr. Justice Mooredelivered the opinion.
A petition for a rehearing having been filed by defendant’s counsel, it is asserted therein that judgment should have been rendered in this court in favor of their client for the sum of $1,135.28, and that the cause should not be remanded for a new trial, thereby imposing additional expense upon the parties. The question now suggested was argued when the cause was submitted, in answering which it is stated in the opinion: “We believe justice would be promoted by reversing the judgment and remanding the cause for such further proceedings as may be necessary.” In order to recover any of the freights claimed to have been paid by the plaintiff, it will be necessary to secure an amendment of the complaint, and, an alteration in this respect being imperative, it is quite probable that the court will, upon application, allow the complaint further to be amended, so as to aver a modification of the original contract. We adhere to the former opinion, and hence the petition will be denied.
Reversed: Rehearing Denied.
On Motion to Retax Costs.
Mr. Justice Moore delivered the opinion of the court.
*369This is a motion assailing the sufficiency of objections to a cost bill and to strike from the files findings made thereon. The judgment herein having been reversed, a cost bill was filed which contained a claim for the sum of $100 paid by the defendant to the official stenographer for transcribing the notes of the testimony given at the trial. The plaintiff’s counsel filed an objection to such claim on the ground that a stipulation had been entered into by the parties to the effect that the cause should be tried in this court on an abstract of record, and that the original bill of exceptions was not to be copied, but that the agreement did not provide for the payment of the expenses of transcribing such notes. The objections so filed were not verified, but an affidavit, made by plaintiff’s counsel, was filed at the samé time, wherein it was stated that the costs of extending the notes were divided and the defendant’s part thereof was the sum so paid, and that the testimony taken was used at the argument in the lower court. Based on the issues thus made, the clerk of this court made findings of fact respecting the several items in the cost bill, but disallowed the claim for transcribing the notes, whereupon defendant’s counsel filed the motion hereinbefore mentioned and an affidavit showing that it was necessary for the trial judge to examine the extended transcript of the notes because of the objections of the plaintiff’s counsel to the bill of exceptions, and that the sum of $100 was requisite and incurred in preparing the cause for appeal.
8. It is contended by defendant’s counsel that the clerk of this court has no authority to make findings of fact on contested items of a cost bill or to determine the matters relating thereto, which duty devolves on the court, and hence the findings complained of should be stricken from the files. The statute originally declared that costs and disbursements should be taxed and allowed by the clerk (B. & C. Comp. § 568), and also provided that, when objections were made to a claim for costs, the party seeking to recover the sums so demanded was required, within a given time, to file with the clerk a verified statement, showing the materiality and necessity of each item *370so objected to, whereupon the clerk was required to pass upon the same and indorse upon, or append to, the verified statement the charges allowed or disallowed, and that the party aggrieved by the decision of the clerk in the allowance of the costs and disbursements might have such action reviewed by the judge in a summary manner, by filing a motion in the cause to have the costs and disbursements retaxed: B. & C. Comp. § 569. These, sections have been amended so as to require the costs and disbursements to be taxed and allowed by the court or judge, but if no objections are made to the items of the cost bill the clerk is required to enter the same as a part of the judgment. If objections duly verified are filed, however, the court or judge must, without a jury, proceed to hear the issues involved, and in doing so may take relevant and competent testimony produced by either party, and thereupon determine the matter. Each party may except to the ruling of the court or judge upon the questions of law arising at such hearing and the same shall be embodied in a bill of exceptions and an appeal may be taken from such allowance and taxation: Laws 1903, p. 209. A perusal of the amendment referred to will show that its provisions are applicable only to the trial court. It may also well be doubted if the original statute was ever intended to regulate the manner of taxing costs and disbursements incurred on appeal. This court, however, has generally followed the statute thus prescribed and the practice in this respect has acquired the binding force of a tacit rule.
9. As the consideration of causes on appeal demand the time of the court, the taxation of contested claims for items of cost and disbursements has heretofore been submitted to the clerk as a referee for his determination in the first instance, subject to review upon motion by a party aggrieved by his allowance or rejection. As this practice facilitates the dispatch of business, and as the statute now in force does not apply to this court, we shall adhere to such procedure, though no formal rule to that effect has been adopted. The findings made by the clerk upon the objections to the cost bill 'will, therefore, not be *371stricken from the files, but his action in rejecting the claim for transcribing the notes of the testimony, having been challenged by a motion, will be reviewed.
10. As a preliminary matter, the sufficiency of the objections will first be considered. The statute declares that they must be verified: Laws 1903, pp. 209, 210. The objections interposed failed technically to comply with this requirement, but there was filed at the same time a supplemental affidavit which explained the item controverted, and this, in our opinion, was a sufficient obedience to the provision of the statute.
11. The charge of $100 for transcribing the stenographer’s notes of the testimony was an expense incurred in preparing the cause for presentation to the lower court for argument, and the taxation thereof is a matter with which this court cannot intermeddle or even review unless the question has been regularly brought here by an appeal, which has not been done in this instance. The clerk, therefore, very properly disallowed the claim, and, this being so, the motion to retax is denied.
Reversed: Rehearing Denied.
Motion to Retax Costs Denied.