Elliott v. Howison

TYS'ON, C. J. This appeal is from an order denying a motion to retax the costs of certain witnesses. Section 3685 of the Code of 1907 provides: “If the taxation of costs be excessive by charging the costs of witnesses who were not examined, or by charging costs to an improper party, or taxing costs contrary to law, the party aggrieved may move the court for a retaxation, setting forth the particulars in which the clerk has erred.” The motion, after setting out the names of the witnesses, the total amount of the certificate issued to each, showing the separate sum allowed for mileage, and that for attendance, alleges, as the sole ground of error of the clerk with respect to the allowance for the mileage, “that all said witnesses resided more than 100 miles from Mobile, Ala., computed by the route usually traveled, and that all the subpoenas to said witnesses were issued by the clerk of this court without the party summoning them (the plaintiff in this cause) his agent or attorney, making affidavit that the personal attendance of said witnesses, or any of them, was necessary to a proper decision of the cause, and that their depositions, or the deposition of any of them, would be insufficient for ■that purpose. Defendant therefore shows that the amount allowed to each of said witnesses for mileage, as aforesaid, and as such taxed as costs against said defendant, is contrary to law and in said particular the clerk of this court erred.” The motion was framed upon the theory — and upon no other, and presents no other question than — that the clerk, in issuing the subpoenas to the witnesses, violated section 4021 of the Code of 1907; and from this it is evident the conclusion was reached that the mileage was not taxable as costs. This identical question arose, and was decided adversely to the appellant, in the case of Alabama Midland Railway Co. v. Rushing, 103 Ala. [73] 542, 15 South. 853. But it is insisted by appellant’s counsel that the evidence introduced upon the trial of the motion established that one of the witnesses was a nonresident of the state and no subcenas were issued by the clerk to any of them, and therefore, that the case cited above should not control. Suffice it to say that these grounds of contention were not incorporated in the motion, and therefore were not the “particular” which was alleged in which the clerk erred. Having alleged one “particular” as ground of relief, relief cannot be granted upon other and different grounds. Had these grounds been made the basis of the motion, whether or not relief should be granted upon either of them is a question upon which we express no opinion, since it is a point clearly not presented by the record. Affirmed. Dowdell, Anderson, and McClellan, JJ. concur.