¶1Sherman was a party defendant in a case in justice’s court, which was appealed to and. tried in the circuit court, where judgment passed against him. He brought the case to this Court, where the judgment was reversed anc? a new trial ordered. The case was noticed for * trial, but before it was reached the plaintiff discontinued his suit. The defendant thereupon prepared and served a bill of costs, and the same was taxed by the county clerk. Both parties appealed, and the taxation was reviewed by the circuit judge.
¶2The circuit judge struck out some items in defendant’s *475bill, and relator insists that this was erroneous. The respondent claims that the circuit judge had a discretion in the case, because it originated in justice’s court, and the statute provides that “ in all cases heard and determinfed on appeal, the costs, or such part thereof as to the court shall seem just, may be awarded to either party, as the court may deem just and right between the parties, in view of the peciiliar circumstances of each case.” How. St. § 7026. We do not think this statute has any application to a case in which the plaintiff discontinues his suit. If he goes out of court voluntarily, the recovery of costs against him is a matter of right. Moreover it appears in this case that judgment for costs in favor of the defendant has been duly entered. The right to costs is fixed by the judgment, and the judge’s discretion, if he would otherwise have any, is thereby exhausted. It only remains to see what items of costs the defendant showed before the clerk he was entitled to.
¶3The only items of costs we find improperly disallowed are those of the attendance of the defendant and of two other persons as witnesses. The judge disallowed the charge as to the defendant, on the ground that the judge believed he attended, not as a witness, but to aid in the management of the defense, and he disallowed the charge as to the others because he considered their evidence incompetent. It appears, however, that the affidavit presented by the defendant on the taxation of costs was, as to all three, in compliance with the statute; How. St. § 9002; and where that is the case, and there is no counter showing, the taxing officer must tax for the attendance of the witnesses. In this case there was no counter showing.
¶4It is proper to add, inasmuch as the parties appear to have proceeded somewhat irregularly in this case, that when appeals from the taxation of costs by the clerk are taken to the circuit judge, the party appealing should specially except in writing to such allowances or disallowances as he complains of, and the bill of costs should then go before the ■ circuit judge on those exceptions only, and on the showing and no other that was made before the clerk.
¶5Mandamus must issue.