
    Hix v. Gully, for use, etc.
    Submitted MarcH 2,
    Decided March 26, 1901.
    Illegality. Before Judge Reese. Hart superior court. April 17, 1900.
    
      Asbury G. McCurry, for plaintiff in error.
    
      James H. Skelton, contra.
   Fish, J.

1. No party in a civil case, save only a plaintiff who voluntarily dismisses his action before trial, can be lawfully made liable for the costs of any witness of the adverse party, who was not “ subpoenaed, sworn, and examined on the trial ” of the case. Civil Code, § 5392.

2. Section 5394 of the Civil Code does not warrant including in a judgment “ against the party dismissing, being nonsuited, or cast ” in a case, the fees of any witness for which such party is not liable under the provisions of section 5392 of the Civil Code.

3. When an officer issuing an execution attaches to the writ a separate paper having thereon a bill of the costs itemized in the manner prescribed in section 5394 of the Civil Code, this paper becomes a part of the execution itself, and the action thus taken by the clerk is equivalent to properly endorsing the bill of costs thereon.

4. In view of the law as above laid down, and of the evidence introduced at the trial, a verdict in favor of the plaintiff in error was demanded. It was therefore erroneous to direct a verdict in favor of the other party.

Judgment reversed.

All the Justices concurring.  