
    Beadle v. Davidson and Wife.
    
      Motion for Re-Taxation of Gosts.
    
    1. Presumption in favor of judgment of primary court. — On appeal, the judgments of primary courts must be presumed to be free from error, until the contrary is shown.
    2. Same; when judgment overruling motion to retax costs will notbedis-turbed. — Where, on appeal from a judgment of the circuit court overruling a motion made by the plaintiff for a re-taxation of the costs, so as to include the fees of a witness examined on behalf of the plaintiff, whose fees the clerk had omitted to tax against the defendant, the bill of exceptions fails to show how many witnesses were examined on behalf of the plaintiff, and does not repel the conclusion, that many other witnesses were so examined, this court will presume, in favor of the judgment of the circuit court, that the action of that court, in overruling the motion, was based on the fact, that the fees of two other witnesses, testifying to the same fact, had already been allowed.
    Appeal from Madison Circuit Court.
    Tried before lion. H. C. Speaice.
    This was a motion by the plaintiff in the court below, appellant here, to re-tax the costs against the defendants, so as to include the fees of one Strode, one of the plaintiff’s witnesses on the trial of said cause, to whom certificates had been issued, but whose fees the clerk- had failed to tax. The motion was overruled, and the plaintiff excepted ; and that ruling is here assigned as error.
    Humes, G-obdoN & Shefeey, for appellant.
    
      "Walker & Walker and D. D. Shelby, contra.
    
   SOMENYILLE, J.

The present appeal is taken from a judgment of the circuit cpurt dismissing a motion made by the appellant for the re-taxation of certain costs. There is nothing in the record showing the ground upon which this action of the court was based. It may have been for the reason, that two other witnesses, besides the witness Strode, had been examined in the same cause, to prove the same matters of fact, and that costs had already been allowed for these witnesses. If this were true, the motion was properly disallowed, in view of the statutory provision, that “ not more than two witnesses shall be taxed in any bill of costs, who were called to prove any one matter of fact.” — Code, 1876, § 3144. The bill of exceptions fails to show how many witnesses were examined ; nor does it repel the conclusion that many others were examined, besides the one in whose behalf the present motion seems to have been made.

The judgments of nisi-prius courts must be presumed to be free from error, when assailed on appeal, until the contrary is shown. To repel the presumption, the appellant, in our opinion, should have made it appear, by affirmative proof, that no allowance for costs had been made by the circuit court in behalf of two other withesses who may have been summoned and examined to prove the same matters of fact proved by the witness Strode.

Affirmed.  