Opinion
(December Term, 1860.)
A contested sheriff's election before the justices of a county court is not an action within the meaning of Revised Code, ch. 31, sec. 75, which entitles the successful party to recover costs.
MOTION for the taxation of costs, before Howard, J., at the last Fall Term of ALAMANCE.
No counsel for plaintiff.
Graham and Hill for defendant. (279)
The defendant Murray received, apparently, a majority of the legal votes for the office of sheriff in the county of Alamance, and at the next term of the county court made application to qualify, but was opposed in this by the plaintiff Patterson, who had given notice previously and specified the grounds of his opposition. Witnesses were examined and the matter heard at length, and in the conclusion the contest was decided in favor of Murray, who gave bond and was qualified. Thereupon the county court awarded costs against the plaintiff Patterson, who appealed to the Superior Court, and the same judgment was given in that court, whereupon Patterson appealed to this Court.
The case turns upon the point whether a contested election to the sheriff's office (which, according to the Revised Code, ch. 105, sec. 13, is to be decided by the county court, a majority of the justices being present) is an action before that tribunal, within the purview of The Code, ch. 31, sec. 75. We think not. The Court has had occasion often to remark that costs are given in all cases by virtue of express legislative provisions. The costs in a controversy of the kind now before us is not specially given in the chapter and section of The Code which establishes the tribunal for deciding it, and they must, therefore, be awarded, if at all, by virtue of the general provisions on the subject, in section 75, chapter 31, above referred to.
That section declares "that in all actions whatsoever the party in whose favor judgment shall be given shall be entitled to full costs." Is our case, then, an action within the provisions of this section? Practically, the term "action" is now exclusively appropriated to those forms of judicial remedy which are ranked under the threefold division of real, personal, and mixed actions. But it is not necessary, as we conceive, to restrict the meaning of the term to this technical sense, in order to exclude a contested election from being intended by its use. Burrill, in his Law Dictionary, title, "Actions," defines that term to mean, "The formal means or method of pursuing and recovering one's right in a court of justice." It is synonymous with "suit." If there be any distinction, it is that the former is applied exclusively to proceedings in a court of law, while the latter is applied indiscriminately to proceedings in law and equity. In the use of either, the plain import would seem to be some one of the ordinary proceedings, conducted by the usual formula for establishing and enforcing rights in a court of justice; which this clearly is not.
In Daughtry, ex parte, 28 N.C. 155, it is decided that the case of a contested election of clerk in the county court is not subject to (280) an appeal to the Superior Court. This must be upon the idea either that it is not like an ordinary suit and subject to its rules, or that it is not before the justices in their judicial capacity; for if it be a suit, and before them as a court, a right of appeal would follow under the general provisions of law regulating appeals.
If our Code of laws be consulted as to the duties prescribed for the county court, it will be seen that these duties are not confined to those which are strictly judicial, but are of the nature, occasionally, of executive or legislative duties. The passing upon the election of sheriff seems to pertain to one of these latter departments in governmental affairs, and belongs to the functions of the county court which are not judicial.
Jones v. Physioc, 18 N.C. 173, and Dickens v. Person, 18 N.C. 406, are not opposed to our conclusions in this case. The first involved simply an inquiry whether one as to whom costs are asked was a party. The statute gave costs expressly against any one who should make himself a party. The second was a case of mandamus, dismissed, and costs taxed against the petitioners as upon a rule nisi.
We are of opinion the contested election, before the county court in this case, was not an action which entitled the successful party, by virtue of the statute, to costs. The judgment, therefore, of the county court directing costs to be taxed was erroneous, and such judgment, under the general law, was the subject of appeal, which lies from any sentence, judgment, or decree of that court.
The judgment of the Superior Court, which likewise gave costs upon the election controversy, should, therefore, be reversed with costs, both in this Court and in the Superior Court, against the appellee.
PER CURIAM. Reversed.
(281)