Beadle v. Davidson

SOMENYILLE, J. The present appeal is taken from a judgment of the circuit cpurt dismissing a motion made by the appellant for the re-taxation of certain costs. There is nothing in the record showing the ground upon which this action of the court was based. It may have been for the reason, that two other witnesses, besides the witness Strode, had been examined in the same cause, to prove the same matters of fact, and that costs had already been allowed for these witnesses. If this were true, the motion was properly disallowed, in view of the statutory provision, that “ not more than two witnesses shall be taxed in any bill of costs, who were called to prove any one matter of fact.” — Code, 1876, § 3144. The bill of exceptions fails to show how many witnesses were examined ; nor does it repel the conclusion that many others were examined, besides the one in whose behalf the present motion seems to have been made. The judgments of nisi-prius courts must be presumed to be free from error, when assailed on appeal, until the contrary is shown. To repel the presumption, the appellant, in our opinion, should have made it appear, by affirmative proof, that no allowance for costs had been made by the circuit court in behalf of two other withesses who may have been summoned and examined to prove the same matters of fact proved by the witness Strode. Affirmed.