(dissenting). — The authority of the court to impose terms upon an order for continuance is inherent, and there was no error in requiring the moving party to pay the reasonable expenses incurred in preparation for trial. 4 Ency. Pl. & Pr. 888; 9 Cyc. 151. The defendant, by availing himself of the order of continuance, waived the right to question such order on appeal. 9 Cyc. 152; Humes v. O’Bryan, 74 Ala. 64; Rhea v. Tucker, 56 Ala. 450; Brown v. Warren, 17 Nev. 417 (30 Pac. 1078). See, also, as to this and other phases of the subject: Robinson v. Railroad Co., 73 Iowa, 506; Pomeroy v. Bell, 118 Cal. 635 (50 Pac. 683); Barney v. Love, 101 Mich. 543 (60 N. W. 58); Lewis v. Wood, 42 Ala. 502; Baumberger v. Arff, 96 Cal. 261 (31 Pac. 53); Burton v. Power, 4 Tex. 380; Knox v. Arnold, 1 Wis. 76; Hamilton v. Cooper, Walker (Miss.) 542 (12 Am. Dec. 588); Gilliland v. Rappleyea, 15 N. J. Law, 138; Walker v. Greentree, 12 N. C. 367; McFarlane v. Moore, 1 Tenn. 32 (3 Am. Dec. 752).
That attorney’s fees and personal expenses are “taxable costs” I do not contend; nor do I argue that the “costs” mentioned in the statute include items of that character. The power for which I contend is inherent in the court, and the Legislature has never attempted to limit or take it away. All that section purposes to do is to designate the party to whom the taxable costs shall be charged, unless otherwise ordered by the court. It in no manner takes away or limits the time-honored authority of the court to attach other reasonable terms to the granting of an order of continuance. The majority does not *334speak quite advisedly when it says that the authorities relied upon by me ’ are all from jurisdictions whose statutes are broader than our own. By way of illustration, I call attention to the state of California, which has a statute practically the same as our own, and there it has frequently been held that the imposition of such reasonable terms in excess of taxable costs is not an abuse of the court’s authority. See Pomeroy v. Bell, supra; Baumberger v. Arff, supra.
For the reasons suggested, and because I think this decision works the surrender of an important judicial power for the due administration of justice, I dissent.
Friday, May 12, 1911.