#### Highway Commissioners v. Hamilton Brothers.

Taxation of Costs — Fees of Witnesses, Subpoenaed, but not Called — ■ Practice,

1. The fact that witnesses who had been subpcenaed were not called to testify, is not of itself sufficient reason why their fees should not be taxed.

2. In the ease presented, it is held that a motion to retax costs previously paid by the adverse party should have been denied.

[Opinion filed August 26, 1886.]

[ '"Appeal from the Circuit Court of Champaign County; the Hon.' C. B. Smith, Judge, presiding.

Mr. J. L. Ray, for appellants.

Mr. Thomas J. Smith, for appellees.'

Per Ouriam.

The appellees recovered á judgment against the appellant which was reversed in this court and the cause remanded. 13 Ill. App. 358. After the case was reversed, but before any other steps taken in the Circuit Court, the appellees, who were plaintiffs below, paid the cost of the case including that made by appellants, defendants below, there then being no judgment against plaintiffs for the defendants’ costs. Subsequently the case was redocketed in the Circuit Court and was finally tried pro forma it is said — there being no witnesses in attendance — by the court, and formal judgment rendered against the plaintiffs for costs. Whereupon a motion was made by plaintiffs and allowed, to retax the costs, which order is the subject of complaint in the present appeal. The only apparent ground for the order was that the witnesses whose fees were retaxed, though subpcenaed for the defendants, were not called to testify. This would not, as a matter of course, be sufficient *200reason why the party should not recover the cost of such witnesses. It often happens that witnesses are summoned in anticipation of an attack, which, though threatened, is abandoned, when the witnesses are present. Smith v. Kinkard, 1 Ill. App. 620.

At any rate the cost in this instance was voluntarily paid by the appellees months before this motion was made, and for this reason if for no other the motion should have been denied.

The judgment will be reversed.

Reversed.