
    Sherman vs. Brown and Partee.
    A motion made to correct the taxation of costs, must be made in the court in which the supposed erroneous taxation was made.
    Where a witness is subpoenaed to prove a matter inadmissible in law as evidence, the party summoning him shall be taxed with the costs of his attendance.
    This was an issue made up in the county court of Mau-ry county, to try the validity of a paper purporting to he the last will of Charles Partee. It was established as his will in the county court; the defendants appealed to the circuit court, where the judgment of the county court was affirmed. After the trial in the circuit court, a motion was made by the defendants below to correct the taxation of the costs of the county court; in this, that two witnesses subpoenaed by the plaintiffs, to wit, Berry-man Hamblet and Williamson Brown, had proved their attendance in the county court, who were not examined upon the trial there. The court overruled the motion; to which opinion of the court, exception was taken by the defendants.-
    The defendants also moved, that the attendance of ten witnesses, subpoenaed by the plaintiffs, in the circuit court, and who had proved their attendance, should be taxed to the plaintiffs, as they were not examined upon the trial. To resist this motion, the plaintiffs made an affidavit, slating, that these witnesses were old friends and neigh-bours of the deceased, Charles Partee; that they were summoned to prove that, in their opinion, he was of sound disposing mind and memory; but the court having decided during the progress of the cause, that no witnesses but physicians, or the subscribing witnesses to the will could give their opinion as to the sanity of the testator, that these witnesses on that account, were not offered, or examined, because said decision excluded their testimony; that these witnesses were summoned, because the defendants had a number of witnesses subpoenaed to prove that in their opinion the testator was of unsound mind; that the evidence was received in the county court, and plaintiffs were compelled (as they supposed it would again be received in the circuit court) to summon these witnesses to rebut the defendant’s proof.
    The court refused to tax plaintiffs with the attendance of these witnesses also, to which opinion defendants also excepted.
    
      Craighead and Pillow, for the plaintiff in error.
    Webber, for the defendant in error.
   Peck, J.

delivered the opinion of the court.

This is a question raised on the propriety of correcting the taxation of the costs of witnesses in the county court. To have, advantage from the motion, it should have been made before that court; after the opinion of that court had upon the question, and the motion and judgment spread of record,' then the revising court, acting upon the point when brought before them, would correct the judgment in this particular, if erroneous. The circuit court did not err in rejecting the motion made in that court, which should have been made and acted on in the court below; though we find error in not correcting such taxation in relation to the witnesses subpoenaed in the circuit court. The witnesses were summoned to prove matter inadmissible in law as evidence; their attendance should have been taxed to the person calling such witnesses.

•Judgment reversed, and taxation ordered accordingly.

Judgment reversed.  