
    Coker v. Patty's Heirs.
    
      Motion for Taxation of Gosts, and Amendment of Judgment.
    
    1. Fees of witnesses as costs. — The foes of witnesses who attend in obedience to a subpoena, although they may not be examined, are properly taxed in the bill of costs, and must be paid by the unsuccessful party, unless it is shown that they were summoned unnecessarily or oppressively by the opposite party.
    2. Amendment of judgment nunc pro tunc. — A judgment cannot be amended nunc pro tunc by reference to an agreement of the parties, which has not been made a part of the record.
    Appeal from the Circuit Court of Cherokee.
    Tried before the Hon. Wm. L. Whitlock.
    Turnkey & Son, for appellant.
    Foster & Forney, contra.
    
   B. F. SAFFOLD, J.

The appeal is taken from the judgment of the court denying relief on a motion to retax costs, and to amend the judgment nunc pro tune, in a suit between these parties, in which the appellants were the defendants, and the judgment was against them.

The objections to the costs were, that they were excessive, and that fees were charged for witnesses who were not examined. Witnesses, if they attend upon subpoena, and secure the proper certificate from the clerk, are entitled to pay, whether they are examined or not. Their attendance may be taxed in the bill of costs, and must be paid by the unsuccessful party, unless it is made to appear that they were summoned unnecessarily, or to oppress, by the opposite party. Briley v. Hodges, 3 Port. 335; Hill & Proctor v. White, 1 Ala. 576. The movants did not offer any evidence of the excess of charges. The court could not do otherwise than refuse the motion to retax the costs.

The amendment of the judgment was asked to be made from an entry of the judge on the docket, and an agreement of the plaintiffs on file. The court was willing to amend by the entry, but refused to consider the agreement. The judgment sought to be amended is not set out, and nothing appears to make the agreement a part of the record. R. C. §§ 2807, 2812; Deslonde & James v. Darrington’s Heirs, 29 Ala. 92.

The judgment is affirmed.  