The provision of section 7247, Code, limiting the time for motion to retax costs to thirty days from the rendition of the judgment, is in conflict with other provisions governing the subject of costs.
Witnesses duly served with subpœnas and attending the court are entitled to their fees on proof of their attendance and mileage within five days after the adjournment of the session of the court at which they attended. Code, § 7235.
The clerk must keep a subpœna docket on which must be entered the style of the cause, the names of witnesses for whom subpœnas were issued, the time of issue, and the return of the sheriff. Code, § 6724, subsec. 6. Later the clerk must enter on this docket data showing attendance of the witness, for whom summoned, and the amount due him. Code, § 7234.
The final taxation of costs named in judgment rendered appears upon the clerk's execution docket. Code, § 6724, subsec. 7. This is an important record, which, when completed, shows all the data touching the judgment, the execution, and the return thereon. It serves as evidence on an issue of title under execution sales, etc.
A motion to retax costs under section 7247 is designed to correct any error or mistake in the bill of costs, whether same relates to fees which never lawfully accrued against either party to the cause, or arose by abuse and oppression *Page 436 on the part of the successful party in summoning unnecessary witnesses. It is construed in connection with sections 7237, 7239, and 7240.
Section 7240 deals with oppressive summoning of more than two witnesses to prove a single fact. It aims to instruct the clerk in advance touching the taxation of costs, if the unsuccessful party charges such abuse.
The manifest reason for such statute is that the clerk, a ministerial officer, is not supposed to know what facts the several witnesses were summoned to prove, or what they did testify about. He is not required to lay down the other duties of his office and hear all the testimony as offered, and there is no provision of law for notice and hearing before him on the question of oppressive costs.
This motion to instruct, in the nature of the case, is to be made before the clerk is usually required to make up the bill of costs against the unsuccessful party. Under former Codes such motion was required to be made during term time. In the Code of 1923, the Code Commissioner changed this statute to read thirty days after judgment, manifestly in view of the Acts of 1915, p. 707, changing terms of court, and fixing the finality of judgments after thirty days. The right to make this advance motion to instruct the clerk within thirty days is wholly inconsistent with the provision of section 7247, limiting the motion to retax to the same period.
This section 7247 was a codification of the Act of March 4, 1911 (Acts 1911, p. 90, § 1). That act had no such thirty-day limitation.
That such motion may be made after term time by any party aggrieved as a separate proceeding, to be heard on notice affording due process of law, has been the law since the early case of Briley v. Hodges, 3 Port. 335.
Another statute, Code, § 7248, clearly provides for motion to retax after execution issued; and on filing same, an order suspending collection until the motion is heard.
These statutes make it clear that the motion may now be made at any time before collection of the disputed items on execution.
It seems the thirty-day provision now appearing in section 7247 was inadvertently written therein on the assumption that this would conform the statute to the new thirty-day finality statute above mentioned. Being wholly inconsistent with other statutes in the same Code, and incapable of enforcement without striking down other statutes and disarranging the law of costs, their taxation, and collection, the statute must be read as if no thirty-day limit was written in it.
As for the case before us, the decision might end here. But some expressions in the opinion of Mr. Justice FOSTER, in which the writer cannot concur are so important in the orderly administration of our statutes on matters of constant recurrence that the writer feels impelled to express his views thereon.
A motion under Code, § 7240, is not confined to the successful party, thus casting on the clerk the duty to omit witness fees and officers' costs in issuing and serving subpoenas, if no such motion is made.
As above indicated, the reason for the statute is that the clerk, a ministerial officer, is without data on the subject, is not called upon to pass judicially on the question of oppressive misconduct of parties and counsel in the cause.
In the absence of instructions on a motion under this statute, the clerk should follow his records in taxing costs. Witnesses and officers are concerned. They have no standing as movants under these statutes. The successful party is interested because liable for all services rendered at his instance, but he may be insolvent and wholly indifferent.
Strange enough this statute, section 7240, has been in the Code throughout our judicial history, and we fail, on diligent search, to find where it has ever been construed. On the other hand, cases under Code, § 7247 have often arisen, and the statute fully construed.
From long experience at the bar, the writer conceives that busy courts and lawyers have infrequently resorted to section 7240, because, by the express provisions of section 7247, the same matter may be inquired into on motion to retax along with all other questions as to the correctness of the bill of costs *Page 437 taxed against the party designated in the judgment.
On such motion, if made by the unsuccessful party, the burden is on him, first, to show more than two witnesses were brought in to prove a single fact, whereupon the burden is on the other party to show a sufficient reason therefor.
As for witnesses not examined, the court may take knowledge of such fact, refreshing his memory, if need be, by the notes of the court reporter. On such motion the fact that witnesses were not examined is prima facie evidence that their fees and officers' fees relating to them were wrongfully incurred, and should be retaxed against the party at fault. There are many reasons why the witnesses may have been properly caused to attend, but not be examined. The issue may be narrowed by amendment of pleadings or failure of the party holding the affirmative to produce evidence on an issue presented by the pleadings. Other circumstances may make it a question of propriety in the vigilant prosecution of an action or defense, in bringing to court more witnesses than are examined. The court, under the evidence presented on the motion, is the proper tribunal to adjudicate such questions.
The motion to retax can be made by any party aggrieved because of an error in the bill of costs as made up by the clerk.