Smith v. Cashie & Chowan Railroad & Lumber Co., 148 N.C. 334 (1908)

Sept. 16, 1908 · Supreme Court of North Carolina

148 N.C. 334

JOHN T. SMITH v. CASHIE AND CHOWAN RAILROAD AND LUMBER COMPANY.

(Filed 16 September, 1908.)

1. Appeal and Error — Costs of Superior Court — Final Judgment.

With but a few exceptions, as, for instance, where continuances are granted upon agreements, or judgment, that a party pay costs, the costs of the Superior Court follow final judgment.

2. Same — Successful Appeal — Costs, an Offset to Final Judgment— Transcript and Certificate.

When plaintiff recovers final judgment in the Superior Court after two successful appeals- by defendant, the costs of all the trials in the Superior Court should be taxed against the defendant, but it is entitled to offset against the final recovery all the costs properly paid by it on its successful appeals, including the transcript and certificates.

MotioN to tax costs, heard by W. R. Allen, J., who found the facts by consent, at November Term, 1907, of Bertie.

Defendant appealed.

Day, Bell & Dunn and Murray Allen for plaintiff.

Winston £ Matthews and St. Leon Scull for defendant.

Oi.arK, C. J.

Tbis case bas been bere twice before upon tbe defendant’s appeal (140 N. C., 375, and 142 N. C,, 26). On tbis last (third) trial below tbe plaintiff again recovered judgment, and tbe defendant sought to offset against the recovery the costs it bad paid in tbe Superior Court on tbe two former trials, whose results bad been corrected on appeal, especially tbe costs paid tbe Clerk for making out tbe. transcripts for those appeals. In effect, tbe defendant moved to tax the costs of those trials and of tbe transcripts thereof against tbe plaintiff.

Tbe court properly refused to grant tbe motion as to the' costs of tbe Superior Court on tbe two former trials. “Tbe costs (of the trial court) follow the result of the final judgment.” Williams v. Hughes, 139 N. C., 19, citing State v. Horne, 119 N. C., 853; Kincaid v. Graham, 92 N. C., 154. With a few exceptional instances (set out in Dotson v. Railroad, 133 N. C., 624), tbe party who recovers final judgment in tbe trial court recovers all tbe costs of that court. It is true that tbe costs of transcript and certificate are not part of tbe costs of tbis Court. Roberts v. Lewald, 108 N. C., 405. Yet it is said in Dobson v. Railroad, supra, that “they are a part of tbe necessary costs of tbe appeal, and not strictly costs of tbe Superior Court incident to the trial .and procedure in that court. Hence tbe successful appellant who bas paid them is entitled to recover them from tbe appellee, and * * * they are not recoverable back in tbe final judgment, should it go in favor of the opposite' party. The Code, sec. 540.”

It follows that, if tbe defendant did not actually recover tbe costs of transcripts and certificates paid by it on the two former successful appeals, it is entitled to have those sums deducted from tbe costs now taxed against it in favor of tbe plaintiff. Such costs are. like tbe costs of tbis Court on said appeal, which, paid by the unsuccessful plaintiff-appellee,. cannot be recovered back by him, though he now recovers final judgment in the controversy. Indeed, the costs of defendant in the two appeals had not been actually paid by plaintiff, but the Judge' properly allowed them to be deducted from the plaintiff’s judgment.

The judgment is

Modified and Affirmed.