Summary
In Wooley v. Robinson, 52 N.C. 30, which was an action to recover several articles of personal property, in which the plaintiff recovered a part of the property, it was held that the defendant could not recover the costs of witnesses examined solely as to the property not recovered by the plaintiff.
Summary of this case from Cotton Mills v. Hosiery MillsOpinion
(December Term, 1859.)
1. Where a plaintiff obtained a verdict, and is entitled to a judgment thereon, under the statute, Rev. Code, ch. 31, sec. 75, he is entitled to full costs, unless otherwise directed by statute, which are to be taxed by the clerk.
2. The taxation of costs by the clerk is subject to the supervision and control of the court, and objections to the taxation of witnesses on account of the excessive number or impertinence, or because not tendered, will receive the consideration of the court upon a rule obtained for the purpose, but they do not affect the form of character of the judgment itself.
3. Where a party is apprehensive that the clerk will err in the taxation of costs, he should move the court for special directions to the officer as to taxing the costs.
4. Where several articles are sought to be recovered in a declaration containing a single count, a portion of which plaintiff succeeds in recovering, and as to the residue fails, the witnesses examined solely as to the articles not recovered are not necessarily to be excluded from the bill of costs, but may be taxed subject to exceptions for excess in number or irrelevancy.
MOTION as to the taxation of costs, heard before Shepherd, J., at a Special Term, 1859, of MONTGOMERY.
Ashe for plaintiff.
Kelly for defendant.
The question in this case arose in an action in detinue, which was tried at this term, wherein the plaintiff, as the administrator of Sarah Robinson, sought to recover from the defendant "five slaves," "six parlor chairs," and "one bed and furniture." The defendant claimed the slaves as a gift from plaintiff's intestate, and adduced in evidence a deed of gift, which the plaintiff attacked on the ground that his intestate was non compos mentis. Nine witnesses were offered and examined by the plaintiff, and a larger number by the defendant. Two of the nine were examined by the plaintiff as to all the property sued for, the other seven only as to the five slaves. The jury found that the defendant detained the parlor chairs and the bed and furniture, but did not detain the slaves.
Upon this finding, the court gave judgment that the plaintiff recover the said chairs and the bed and furniture and all his costs, to be taxed by the clerk, from which the defendant appealed. (31)
The judgment of the court below is in the precise language of the statute. It was enacted (Rev. Code, ch. 31, sec. 75) that "in all actions whatsoever the party in whose favor judgment shall be given, or, in case of nonsuit, dismission, discontinuance, or stay of judgment, the defendant shall be entitled to full costs, unless where it is or may be otherwise directed by statute." As there was a verdict and judgment below for the plaintiff, it follows that there should also be a judgment in his favor for full costs, to be taxed by the clerk. Where a party is entitled to a judgment for costs, he is, under our statute, entitled to all his costs, or full costs.
This Court, in interpreting the Revised Statute, ch. 31, sec. 79, which is, in substance, the same as the above section of The Code, settled the law as above stated. Costin v. Baxter, 29 N.C. 111. While the law is thus plainly written, however, it often happens that difficulties arise as to what are a party's full costs. By section 74 of the Revised Code, ch. 31, it is provided, "at the court where the cause shall be finally determined the party recovering judgment shall file in the clerk's office the witness tickets, the amount whereof shall be taxed in the bill of costs, to be levied and recovered for the benefit of said party: Provided, that the party cast shall not be obliged to pay for more than two witnesses to prove a single fact." And it has also been long held to be a practical duty with the court to direct witnesses not to be taxed, or strike them out from the bill of costs, and leave them to be paid by the successful party who summoned them, not only where there has been more than the requisite number to a fact, but also where it appears that any have been immaterial or not tendered. Under the general order, therefore, for the taxation of costs in this case, if the defendant apprehended there might be errors on the part of the clerk to his prejudice in respect to certain witnesses, this apprehension (32) might have been brought before the court upon a rule and special directions obtained, if a proper case had been made out. Whether upon a scrutiny of the testimony, made in this way, it may not have become the duty of the court to exclude witnesses from the taxed bill of costs, we have no means of determining. The fact per se stated on the record did not, in our opinion, require of the court the exclusion demanded. Where several articles are sought to be recovered in a declaration containing only a single count, a portion of which plaintiff succeeds in recovering, and as to the residue fails, the witnesses examined on the parts only as to which the plaintiff failed are not, ipso facto, to be excluded from his bill of costs, but may be taxed subject to exceptions for excess of number or impertinence as above stated.
We think the judgment of the Superior Court was right.
PER CURIAM. Affirmed.
Cited: Loftis v. Baxter, 66 N.C. 342; Vestal v. Sloan, 83 N.C. 557; Horton v. Horne, 99 N.C. 221; Cook v. Patterson, 103 N.C. 129 Whitford v. New Bern, 111 N.C. 272; Beckwith ex parte, 124 N.C. 115; Hobbs v. R.R., 151 N.C. 136; Cotton Mills v. Hosiery Mills, 154 N.C. 466; Chadwick v. Ins. Co., 158 N.C. 381.