Opinion
(June Term, 1840.)
If, after a verdict for the plaintiff in the county court, the court, upon motion of the defendant, ordered the costs of the attendance of some of his (the plaintiff's) witnesses to be taxed against him, and he appeals from such order, the appeal is proper, and the Superior Court cannot dismiss it upon the ground that the matter appealed from was one within the discretion of the county court.
ON the trial of this action, which was brought in the county court of BUNCOMBE, the plaintiff introduced five witnesses, all of whom were sworn, but only two of them were examined. After a verdict for the plaintiff, the defendant moved that he, the plaintiff, should be taxed with the costs of the attendance of the three witnesses who were not examined, which motion was allowed, and the costs of the said three witnesses were ordered to be taxed against the plaintiff accordingly; and he thereupon appealed from the order to the Superior Court; and on the last circuit, Hall, J., ordered the appeal to be dismissed, upon the ground that the matter appealed from was one within the discretion of the county court; and the plaintiff thereupon appealed to the Supreme Court.
No counsel for either in this Court.
The Superior Court dismissed the appeal on the ground that it was a matter of discretion with the county court whether they would tax the tickets of the three witnesses against the plaintiff or against the defendant. We think this was not a ground for dismissing the appeal. The county court was by law obliged to order the tickets of the three witnesses to be paid by somebody, either by the defendant, who had been cast in the action, or, if illegally summoned, by the plaintiff, who summoned them. They deemed it right to order the plaintiff to pay the said three witness tickets. The plaintiff was thereupon dissatisfied with the order, and appealed from it to the Superior Court, which, we think, he had a right to do. Whether the Superior Court ought to have affirmed the judgment of the county court is another (125) question, and not for consideration at this time. the act of Assembly declares "that when any person, either plaintiff or defendant, shall be dissatisfied with the sentence, judgment, or decree of any county court, he may appeal from such sentence, judgment, or decree, to the Superior Court of Law." 1 Rev. Stat., ch. 4, sec. 1. The appellant was a party plaintiff in the suit where the judgment was rendered against him as to this cost; he was interested, and the case says that he was dissatisfied. The law gave him a right to appeal, and the judge erred in dismissing it. The judgment must be reversed. The Superior Court will proceed to try the case on the appeal from the county court.
PER CURIAM. Reversed.