Alabama Midland Railway Co. v. Rushing

103 Ala. 542

Opinion

COLEMAN, J.

The record fails to show that any final judgment has been tendered in the case to authorize an appeal, but, pretermitting this defect, the circuit court did not err, in its ruling on the motion of the appellant to re-tax the cost. Section 2801 of the Code provides that the evidence of a witness may be taken by deposition, “when the witness resides more than one hundred miles from the place of trial,” &c.; but the statute does not require that the evidence shall be taken by deposition. If the witness resides in the State and is subpoenaed, and attends in obedience to the subpoena, he is entitled to his mileage and per diem, as other witnesses. There is no error in the record.

Affirmed.