Summary
In Clerk v. Wagoner, 26 N.C. 131, Chief Justice RUFFIN, delivering the opinion of the Court, says: "It has been usual for the officers of the Court to indulge the successful party for his costs until a return of his execution therefor against the party cast. If raised on that execution, the officers, instead of the party, receive them. It is clear that every party may be required to pay his own costs as they are incurred, or at any time when demanded.
Summary of this case from Long v. WalkerOpinion
(December Term, 1843.)
After a judgment, the clerk has a right to issue execution against a party to the suit for his own costs, though that party has succeeded in his suit.
APPEAL from Manly, J., at Fall Term, 1843, of DAVIDSON,
Iredell for plaintiff.
Mendenhall for defendant.
Motion made by Charles Mock, clerk of the county court of Davidson, for a judgment against the defendant under the following circumstances. There had been before a justice of the peace an action, by warrant, in favor of Daniel Shuler against the defendant Wagoner, in which a judgment was rendered for Shuler. From this judgment the defendant appealed. In the county court there was a rule upon Shuler, at the instance of the defendant, to give surety for the costs; and in consequence of a failure to comply with this rule, his cause was dismissed and a judgment entered against him for the costs of the defendant. Mock, the clerk, then moved for a judgment also against the defendant Wagoner for the costs due to him by Wagoner, which motion was overruled and an appeal taken to the Superior Court. In that court the motion was also overruled and an appeal taken to the Supreme Court.
It has been usual for the officers of the court to indulge the successful party for his costs until a return of his execution therefor against the party cast. If raised on that execution, the officers, instead of the party, receive them, and thus the matter is settled. But it is clear that every party may be required to pay his own costs as they are incurred, or at any time when demanded. It is incident to every court to have a jurisdiction over its suitors and officers to (132) regulate the taxing and payment of the proper costs, and for that purpose to make rules on those persons and enforce them by attachment. This is most usually done when the officers have charged and levied more or higher fees than they ought to have done. But it may be done as properly when the party owing the costs to the officers fails to pay them. In this State it has been the course to proceed by rule and attachment for his own costs, because after judgment a milder method by execution was given by statute. The act of 1784, Rev. Stat., ch. 105, sec. 24, is express that where suits are determined and fees are not paid by the party from whom they are due, the clerk may issue execution for them. In Office v. Lockman, 12 N.C. 146, it is true, the execution against the successful party was not moved for until a return of nulla bona on a fi. fa. against the party cast, but the Court there said, in so many words, that the party is at all times answerable for his own costs, and execution was awarded against the party who had gained the suit for his own costs. So we think it must be here. The judgment is therefore reversed, and the rule must be made absolute as moved for by the clerk.
PER CURIAM. Reversed.
Cited: Office v. Allen, 52 N.C. 157; S. v. Wallin, 89 N.C. 580; Long v. Walker, 105 N.C. 97; Ballard v. Gay, 108 N.C. 545.
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