Barkly

— This is an appeal from an order refusing to retax a bill of costs presented by the defendant, who had succeeded in the action. There had been two trials of the case, and on each trial the evidence had been transcribed by the short-hand reporter. In the first instance, this was done upon the order of the court; at the second trial, it was done upon the order of the defendant, without any from the court. It is not entirely clear how much of the amount due to the short-hand reporter for the first transcript was paid by defendant and plaintiff, but it appears as if each one had paid half the fees. As this transcription was made upon the order of the court, *494 but without any direction as to how the fees due therefor should be proportioned between the parties, and paid, each side should have paid half, as they did. “ In cases where a transcript has been ordered by the court, the fees for transcription must be paid by the respective parties to the action, in equal proportions, or by such of them, and in such proportions, as the court, in its discretion, may order.” (Code Civ. Proc., sec. 274; Amend. Codes 1880, p. 54.) By the order of the court, this half of the fees thus paid by…