Benjamin D. Herrick, Defendant in Error, v. Lizzie Grove Ryan et al., Plaintiffs in Error.

Gen. No. 5,707.

(Not to he reported in full.)

Error to the Circuit Court of Iroquois county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the October term, 1912.

Affirmed.

Opinion filed August 2, 1913.

Statement of the Case.

Bill for partition by Benjamin D. Herrick against Lizzie Grove Byan and others. From an order denying a motion to retax costs, after sale of the property, defendant appeals.

*522Abstract of the Decision.

I. Pleading, § 236 * —when party has notice of amendment. A defendant who is in court, or represented therein by counsel, when leave is given to file an amended bill cannot plead ignorance of the fact that it was filed.

2. Appeal and error, § 1341*—what presumed as to costs on appeal. Every intendment is in favor of the proper taxation of costs.

3. Costs, § 65*—when motion to retax is properly denied. Where a record shows no evidence of error in taxing costs, but merely the item to pay “clerk’s costs, $121.75,” and a motion below was the only basis for retaxation of costs, the Appellate Court will presume that sufficient proof was heard to justify the denial of the motion.

H. E. Torrance, for plaintiff in error, Lizzie Grove Ryan.

A. F. Goodyear and Harry Thom, for defendant in error.