
    Alabama Midland Railway Co. v. Rushing.
    
      Action against Railroad to recover Damages for hilling Cattle.
    
    1. Witness; right to mileage. — While, under the provisions of the statute, (Code, § 2801), “when a witness resides more than one hundred miles from the place of trial,” his evidence may be taken by deposition, the statute does not require that the evidence must be so taken; and if a witness, residing in this State more than one hundred miles from the place of the trial, attends the trial in obedience to a subpcena, he is entitled to his mileage and per diem, as other witnesses.
    Appeal from the Circut Court of Pike.
    Tried before the Hon. John R. Tyson.
    This action was brought by the appellee against the appellant railway corporation, to recover damages for the killing of cattle. There was judgment for the plaintiff in said suit. Subsequently there was a motion made by the defendant in said cause to re-tax the costs ;• and' on this motion it was shown that in the cost bill there was one item, amounting to. twenty-three dollars, taxed against the defendant, for subpoenaing and the attendance of one Askew as a witness for the plaintiff; that said Askew lived in the State of Alabama, more than one hundred miles from the place of trial, but had attended the trial as a witness, although there was no affidavit filed in said cause “that the personal attendance of the witness was necessary for a proper decision of the cause.” On this evidence the court overruled the motion to re-tax the cost, and the defendant duly excepted. This is the only ruling shown by the transcript.
    A. A. Wiley and John L. Gardner, for appellant.
    Gamble & Parks, contra.
    
   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.  