
    (92 South. 447)
    McCORD v. BRIDGES et al.
    (7 Div. 235.)
    (Supreme Court of Alabama.
    April 27, 1922.)
    Appea! atitl error &wkey;>709 — In absence of evidence' denial of retaxation of costs not disturbed.
    Denial of motion, under Code 1907, § 3684, to retax costs, cannot be disturbed on appeal, there being no evidence in the record to sustain the facts alleged in the motion, and the bill of exceptions stating none was introduced to prove them; they requiring affirmative proof, and order being presumed free from error till the record shows the contrary.
    Appeal from Circuit Court, Talladega County; S. W. Tate, Special Judge.
    Action by Z. D. McCord' against J. U. Bridges and others. Prom the denial in part of complainant’s motion to retax costs, he appeals.
    Affirmed.
    See, also, 205 Ala. 692, 89 South. 39.
    James W. Strother, of Dadeville, and John A. Darden, of Goodwater, for appellant.
    The law of fees and costs is penal. Section 3693, Code 1907. Cost charges were excessive and should have been retaxed. Section 3684, Code 1907;. 139 Ala. 568, 36 South. 722.
    Riddle & Riddle and Harrison & Stringer, all of Talladega, for appellees.
    There was no proof to sustain the motion, and hence this court cannot assume that the order was wrong.
    The court cannot pass upon the order, where no .evidence was introduced. 104 Ala. 548, 16 South. 422.
   MILLER, J.

This was a motion by Z. D. McCord to retax certain items of costs in a cause wherein he was complainant and J. U. Bridges and others were defendants. The court granted the motion as to some of the items mentioned, but overruled the motion as to other items. The overruling of the motion as to certain items of the court cost taxed against complainant is assigned as error. The motion avers facts showing that these items should he retaxed; some because they are excessive, and others because they are charges for witnesses not examined. Section 3684, Code 1907.

The bill of exceptions states': ■ “No evidence was offered in support of said motion.” The motion and tbe facts averred therein are not evidence. There must be affirmative proof to sustain the allegations of the motion before the court will be in error for refusing it. This court will presume the decree or judgment on the motion is free from error until the record shows the contrary. Beadle v. Davidson, 75 Ala. 494. There is no evidence in this record to sustain the facts alleged in the motion; and the record affirmatively states no evidence was introduced in the primary court to prove the allegations in the motion. Hence we cannot declare that the trial court erred in overruling the motion as to the items mentioned. Torrey v. Bishop, 104 Ala. 548, 16 South. 422.

The judgment of the circuit court is affirmed.

Affirmed.

ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.  