
    Gage v. Page.
    Where there was a motion to rotnx the costs, which was sustained, but it did not appear from the transcript of the proceedings when the judgment in the cause was rendered,nor that- iho party against whom the motion was made had notice of it, nor that he appeared at the hearing, the order relaxing the costs was reversed.
    Where the dork, apparently at his own instant*, made amotion to retax the costs, which was sustained hut was reversed on appeal, the costs of the proceeding were adjudged against him.
    Appeal from Harrison. The record of the court below showed the following proceedings, after stating tiie style of Hie case: “District Court, December “Term, id-id. And now conies Samuel Stenson and moves the court to open “said cmi.-.e and retax the cost, so as (o allow the claim of David Hill as a wit“ness in said cause of SGI which was left out by mistake in the original taxing “of the ocí'í's. Samuel Stenson, by James A. Simpson, his attorney.
    “ The ill at e of Texas, Harrison comity. I certify that David llill lias proved “his attendance in the case of David Gage v. Jeunett Page for forty-four “days, up to Pall Term, A. D. 1845, and is entitled to one dollar and twenty-“flvo eonir. per day up to that time; from that to the obtaining a judgment he “proved his attendance for six days, and is entitled to one''dollar per day, “making in all sixty-one dollars. June 21st, A. D. 1847. Samuel Stenson, “District Clerk, by Win. Davenport, Deputy.” And afterwards, to wit, at the Pall Term, 1S50: “In this case Hie motion came on to be heard, and the court “being'fully advised in the premises, doth order that the motion be sustained, “and tiie- Witness’ fee of David Hill for sixty-one dollars as proven up in said “case be. relaxed in tiie bill of costs wherein said Jennett Page recovered-“judgment in this court, for which execution may issue.” This was the whole of the record of the proceedings on tiie motion of Stenson, the clerk, to retax the costs.
   LipSCOMR, J.

We are satisfied that the judgment retaxing the costs as presented by the record cannot bo sustained. It seems to have been made on motion afloran interval of several years from the rendition of the judgment in the ease against Gage, who was plaintiff in the original suit, and without notice to him that siich a motion would be made. The motion should have shown tiie time when the judgment was rendered and tire time when tiie costs were first taxed, and notice of this motion should have been given to Gage by a service of a copy thereof a reasonable time before it was called up for the action of the court thereon. The party liable for the costs may have paid it to the witness, or tiie negligence of the witness may have been such as not to entitle him to have it taxed in tiie costs of the suit, as his certiiieate does not seem to have been Hied until the motion was made. Such matters of defense could have been inquired iulo if Gage had have had notice of the motion.

Although we are well satisfied that tiie judgment must be reversed, we have had some difficulty in determining how the judgment should be rendered. Gage is entitled to a reversal, and tiie costs therefore could not by any rule of law or principles of justice be adjudged against him; and the defendant in the original suit, who had judgmental her favor for the costs, docs not seem to have had any agency or interest in the proceedings on the motion to retax tiie costs, and Hill, tiie witness, seems to have had no agency in tiie proceedings. It’ would therefore be wrong to tax either of them with the costs. But Stenson made the motion, and, as appears from the record, without t.lie direction of any one else, and it was therefore a matter of controversy between him and Gage, and on the judgment being- reversed it must be at his costs, as the ■record shows that he was the real party plaintiff in the ease.

Judgment reversed.  