Opinion
(Filed 17 April, 1912.)
Appeal and Error — Executors and Administrators — Bad Faith — Costs — Interpretation of Statutes.
The motion of plaintiff to tax the defendant administrator with costs of appeal is denied, as he was appellee therein, and nothing appears to the Court to show that he has acted in bad faith, etc. Revisal, sec. 1277.
APPEAL by plaintiffs from Peebles, J., at the October Term, (439) 1911, of WAKE.
J. H. Fleming for plaintiff.
B. M. Gatling for defendant.
This is a motion by plaintiff to tax the defendant Marcellus Smith personally with the costs of this Court. Defendants were successful in the court below in the case, and plaintiff appealed. The judgment was reversed here, and the cause remanded to be further proceeded with in accordance with law. We do not see any reason, at present, for giving a personal judgment against Smith. He was brought here by the plaintiff's appeal, and his conduct has not been frivolous, and he has done nothing to make himself personally liable. The defendants the costs of this Court, as administrators, and they will be allowed a credit for the same in their administration account, unless the plaintiff can show sufficient reason to the lower court why it should not be allowed. Provision as to the recovery of costs against executors and administrators is made in Revisal, sec. 1277, where such costs are declared to be "chargeable only upon or collected out of the estate, fund, or party represented, unless for mismanagement or bad faith in prosecuting or defending the action, the Court shall direct the same to be paid personally by the representative," but no such case is presented here. The motion is denied, with costs to be taxed.
Motion denied.
(440)