
    State of Nebraska, plaintiff, v. Woodruff Ball et al., defendants.
    Filed June 16, 1913.
    No. 16,050.
    New Trial: Costs. Defendant was awarded a new trial for newly-discovered evidence on condition that he pay the costs of all new witnesses produced hy him in any event. Held, That such condition was improperly imposed, and on judgment in favor of defendant all of the costs were properly taxed against plaintiff.
    Opinion on motion for reheáring and to retax costs of case reported in 93 Neb. 358.
    
      Motion overruled.
    
   Fawcett; J.

Judgment was rendered and opinion filed March 14, 3913, 93 Neb. 358. Plaintiff has filed motion for a new trial and to retax costs. Upon due consideration of the motion for a new trial, the same is overruled.

There have been two trials in this case. Upon the first trial the judgment was in favor of plaintiff. 90 Neb. 307. A motion for a new trial was filed and granted March 12, 1912, on the ground of newly discovered evidence. Upon consideration of the motion it was ordered: “That said motion be, and the same hereby is, sustained on condition that said defendant pay the costs of all new witnesses produced by him in any event.” The case was then referred to a referee to take additional testimony and report findings of fact and conclusions of law. The report of the referee was favorable to defendant, and upon due consideration the report was approved and judgment entered accordingly. The clerk taxed all of the costs against the plaintiff. Plaintiff now urges that under the order of March 12, 1912, the costs of ail new witnesses produced by defendant should be taxed to him. The defendant urges that our order of March 12 should not have been entered, and that under the statute he is entitled to recover his costs. Upon due consideration defendant’s contention is sustained. Our order of March 12, 1912, is therefore vacated and set aside, and plaintiff’s motion to retax costs is

Overruled.

Letton, J., not sitting.

Rose, J., dissents.  