
    D. M. Osborne & Co. vs. E. A. Gray.
    April 21, 1884.
    Costs — Taxation of Witness Fees.
    This action being at issue, and having been called for trial by jury in the district court for Steele county, and a jury having been sworn to try the cause, the defendant failed to appear, his answer was withdrawn, and the jury, under the direction of the court, returned a verdict for plaintiff for $389.86. The plaintiff (a corporation) in its bill of costs included items of fees and mileage of witnesses at the. June term, 1882, (when the cause was continued,) amounting to $82.46, and at the December term, 1882, (when the verdict was taken,) amounting to $93.58. The attorney’s affidavit as to these disbursements stated, as to each witness, his residence, the number of miles necessarily and actually travelled, and the number of days he was actually and necessarily in attendance, and that he was a material and necessary witness for plaintiff.- The defendant objected to these items, on the ground (among others) that the affidavit was defective in not stating any facts showing that the persons named were necessary witnesses, or that their testimony could have been material, had the cause been tried. The objections were overruled by the clerk, and the items allowed. On appeal to the court, the clerk’s taxation was modified by Buckham, J., the items objected to being stricken out. The plaintiff appeals from the judgment entered pursuant to this ruling.
    
      Whedock é Sperry, for appellant.
    
      Coggsivell á Richter, for respondent.
   By the Court.

Where, in a bill of costs offered for adjustment, are items for witnesses who, for any cause, were not sworn, if the items are objected to, an affidavit showing the attendance and travel of the witnesses, and stating that they were “necessary and material,” is not sufficient. There must be an affidavit stating facts which show the necessity of having them in attendance, which affidavit the party may furnish when the items are objected to.

Judgment affirmed. 
      
       Dickinson, J., because of illness, took no part in this decision.
     