This was a motion made in the court below by defendant in error to retax the costs. There had been two trials of the cause in the Circuit Court, and upon each trial some five or six witnesses had been subpoenaed and weie present at the trial in obedience thereto, but were not called and sworn.
After these trials and after the clerk had made up the fee bill of the costs, at the March term, 1888, a motion in writing was entered by defendant in error to retax the costs as to these witnesses, and is based upon the following reason alone : that said witnesses “ were brought to court by the defendants (plaintiffs in error), and not called nor in any manner sworn or used.” An affidavit of defendant' in error stating the same fact was the only evidence, except the fee bills, heard in support of the motion.
The court allowed the motion and retaxed the costs as desired by the motion.
Counsel for defendant in error cite as authority for the action of the court, Sec. 15, Chap. 33, B. S., which is, 66 The court may limit the number of witnesses whose fees are to be taxed against any party to such number, not less than two, as shall appear to the court to have been necessary.”
This section clearly gives the trial court the power to limit the number of witnesses to be taxed, and the action of the court under its provision being in its discretion, could only be reviewed for an abuse of that discretion.
But we think this section has no application to the present case. The court, under this section, must act before the fee bill is made up by the clerk, and may, by proper action, determine how many witnesses shall be taxed against the respective parties, and by this determination the clerk will be governed when he makes up the fee bill.
But aside from this one instance the clerk, in making up fee bills and taxing costs, is not governed by the directions of the court, but the law has imposed the duty of determining the legality of each item charged, upon him, and his action in taxing the costs can only be inquired into by virtue of See. 26, Chap. 33, R. S. In proceeding under the last named section we hold that there must be an examination by the court, and a finding, which presupposes that evidence has been heard, or that upon an inspection of the fee bill, items are found contrary to, or not warranted by the law. From this fin'ling either party may appeal and have it reviewed, and in case the evidence and record do not sustain the finding of the trial court it can not be upheld.
This brings us to the question whether, upon such examination made under Sec. 26, the court will be warranted in retaxing the bill of costs as mado^ out by the clerk for the reason alone that witnesses taxed against defendant in error “ were brought to court by the opposite party and not called nor in any manner sworn or used.”
We think such a reason not sufficient to justify the action of the court and would repeat what we said in Highway Coms. v. Hamilton Bros., 21 Ill. App. 199, upon this subject: “ The only apparent ground for the order was that witnesses whose fees were retaxed, though subpoenaed for the defendants, were not called to testify. This would not, as a matter of course, be sufficient i eason why the party should not recover the costs of such witnesses. It often happens that witnesses are summoned in anticipation of an attack, which, tiiough threatened, is abandoned when witnesses are present. Smith v. Kinkaid, 1 Ill. App. 620.”
The judgment of the Circuit Court will be reversed and the cause remanded,
Reversed and remanded.