#### Simon Sinsheimer v. William Skinner Manufacturing Company.

Costs—Taxation of—Negligence.

Upon the question whether the non-attendance of a witness was caused by the neglect of the appellant, this court holds that the evidence sustained the decision of the court below, that such negligence was the cause of the nonattendance.

[Opinion filed February 9, 1892.]

Appeal from the Circuit Court of Cook County; the Hon. George Deiggs, Jndge, presiding.

Mr. P. T. Keily, for appellant.'

Mr. James A. Peterson, for appellee.

Waterman, P. J.

The opinion of this court upon the application out of which this proceeding has arisen, is reported in 37 Ill. App. page 467.

This is an appeal from an order of court taxing costs under the 2>ro visions of See. 29 of Chap. 51, entitled “ Evidence and Depositions.” The question presented was whether the nonattendance of the witness was from some cause not occasioned by the fault of appellant, or from some other unavoidable cause. We have examined the evidence upon this matter presented by the record in this cause, and we see no sufficient reason for interfering with the conclusion' of the court below. It may be that appellant acted on the best information he had, but he either did not go far enough, or he did not take sufficient pains to get correct and full information. He gave notice to take the deposition of his intended witness without ever having had any communication with such witness to learn if he could or would be present at the time and place appointed; *609nor did appellant at any time get notice to such intended witness to attend according to the notice given to appellee.

The witness, it appears, actually was in Denver, the city wherein the deposition was to be taken, on the day appointed, and might by the use of proper exertion have been notified. He was a brother of appellant, and no reason for his nonattendance is shown, save the fault of appellant.

The judgment of the Circuit Court is affirmed.

Judgment affirmed..