Henderson v. . Williams

27 S.E. 30, 120 N.C. 339

• Court: Supreme Court of North Carolina
• Decided: February 5, 1897
• Status: Published

Opinion

Faieoloth, C. J.:

The summons was returnable to Fall Term, 1895. At Fall Term, 1896, the plaintiff took a non-suit and judgment was entered against him for costs. The defendant had witnesses in attendance and their tickets were taxed against the plaintiff, who at next term moved to re-tax the costs and to exclude the defendant’s witnesses’ cost on the ground that they were not sworn, examined or tendered against the plaintiff. His Honor allowed the motion and directed the Clerk accordingly.

This was error. The case was brought for trial at Fall Term, 1896, and the defendant properly had his witnesses present. He bad no opportunity to swear, examine or tender bis witnesses by reason of tbe non-suit. It is where a trial is bad and tbe witnesses are not sworn or tendered that tbeii costs cannot be taxed against tbe party cast. Loftis v. Raxter, 66 N. C., 340. When such costs are allowed, see Code, Sections 528 and 532.

Error.