Opinion
No. 40648.
November 11, 1957.
1. Appeal — costs — improperly taxed.
Where approximately 40 witness subpoenas and returns were improperly copied in appeal record, and cost bill was not properly itemized as required by statute, appellant was entitled to leave to file motion to retax costs within 60 days from date of final judgment.
Headnote as approved by Gillespie, J.
APPEAL from the Circuit Court of Lamar County; SEBE DALE, Judge.
Lawrence D. Arrington, Hattiesburg, for appellant.
I. The verdict of the jury is contrary to the law and the overwhelming weight of the evidence. Bailey v. State, 202 Miss. 221, 31 So.2d 123; Cook v. State, 194 Miss. 467, 12 So.2d 137; Hill v. State, 94 Miss. 391, 49 So. 145.
G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
I. It is respectfully submitted that a clear-cut jury case was made by the testimony of the State's witnesses and the testimony of the witnesses for the defense, that there was more than ample testimony for the State upon which the jury could base its verdict of conviction of assault.
The only assignment of error argued is the contention that the verdict is contrary to law and the overwhelming weight of the evidence. The conflict in the testimony made a typical issue for the jury. We find no error.
(Hn 1) The clerk's cost bill contains an item as follows: "Copying Record. . . . . . . . $60.00." The bill does not reveal the number of words in the record. Pages 13 to 51, inclusive, of the record consist of copies of the subpoenas for witnesses and returns thereon. The 1953 Revised Rules of this Court have appended thereto an order providing that no witness subpoenas shall be copied into the record. The clerk's cost bill is apparently excessive for the reason that nearly forty witness subpoenas are improperly copied in the record, and are no doubt counted in the number of words for which charge is made. Nor is the cost bill properly itemized as required by statute.
As to the court reporter's bill for costs, we do not find a certificate of the number of words transcribed.
For the reasons stated, appellant is hereby granted leave to file a motion to retax the costs within sixty days from the date of final judgment in this case. Neshoba County Gin Association, AAL v. Johnson, 87 So.2d 68, 87 So.2d 927.
Affirmed with leave to file motion to retax costs.
Roberds, P.J., and Hall, Kyle and Arrington, JJ., concur.