LaRoque v. Kennedy, 161 N.C. 459 (1913)

March 19, 1913 · Supreme Court of North Carolina
161 N.C. 459

O. K. LaROQUE et al. v. W. L. KENNEDY et al.

(Filed 19 March, 1913.)

1. Appeal and Error — Former Decision of the Supreme Court — Review — Motion to Rehear — Practice.

A decision of the Supreme Court may not be reviewed in a subsequent appeal in the same action; the remedy is by petition to rehear.

*4602. Married Women — Judgments—Costs—Contracts.

The adjudication of costs against the losing party to an action is not contractual, but the creature of .statute, and therefore bears no relation to the law regulating the liability of married women under their executory contracts.

3, Married Women — Judgments—Costs—Execution Against Lands.

Where a nonresident married woman has unsuccessfully i>rose-cuted her action, and costs are taxed against her, execution may be issued on her lands situated here.

Appeal by plaintiffs from Garter, J., at November Term, 1912, of Lemtor.

This action was commenced to recover damages for ponding water on the land of the feme plaintiff, and was tried at January Term, 1911, of the Superior Court of Lenoir County.

The verdict of the jury was against the plaintiff, and judgment was rendered thereon, adjudging, among other things, that the plaintiff pay the defendant’s costs.

The defendant, at said term, moved the court that the judgment for costs be made a charge upon the separate estate of the plaintiff, and .that a certain amount paid by him to the surveyor be taxed as costs. Both motions of the defendant were denied, and he excepted.

The plaintiff and the defendant appealed from the judgment, and this Court affirmed the judgment on the plaintiff’s appeal, and reversed it on the defendant’s appeal, on the item as to amount paid the surveyor, and not otherwise. Judgment was then entered in the Superior Court, determining the amount to be taxed in the bill of costs for fees paid the surveyor, and adjudging that the plaintiff pay the costs.

The said plaintiff is a nonresident, and it appearing that she did not have sufficient personal property in this State to satisfy said judgment, execution was issued thereon, and her land was advertised for sale thereunder.

The plaintiff then applied for an order to restrain such sale, upon the ground of the invalidity of the judgment, she being a married woman, which was refused, and she appealed.

Loftin & Dcm'son, L. B. Vwrser, and G. V. Gowper for plaintiff. ' ■

Bouse & Land for defendant.

*461Alleh, J.

When tbis case was bere upon tbe former appeal (156 N. O., 374) we said: “Tbe defendant was not entitled to have tbe judgment for costs made a charge against tbe separate estate of tbe feme plaintiff. Tbe ordinary judgment for costs was rendered against ber, wbicb was proper.”

If tbe plaintiff was not satisfied witb tbis adjudication, ber remedy was by petition to rebear, as sbe cannot present tbe same question for review upon a second appeal. Roberts v. Baldwin, 155 N. C., 279.

If, however, tbe question was res integra, we would not doubt the liability of tbe plaintiff.

Sbe is a party and is suing to recover damages to ber property under a statute wbicb permits ber to sue alone, without tbe joinder of ber husband (Graves v. Howard, 159 N. C., 594), and costs are not contractual, but tbe creature of tbe statute. Costin v. Baxter, 29 N. C., 111; Clerk's Office v. Commissioners, 121 N. C., 29.

Tbe capacity of a married woman to contract is not involved. Sbe has used tbe court and its process to' enforce a claim, and having failed in ber action, tbe statute imposes upon ber, as it does upon all parties in eases like tbis, liability for tbe incidental expenses.

Tbe question has been decided in other jurisdictions, and upon tbe ground that, when by statute tbe married woman may sue alone, sbe must suffer tbe same penalty as other litigants. 5 Ency. Pl. and Pr., 156; Hardin v. Holton, 50 Ind., 324; Hayes v. Insurance Co., 76 Va., 228; Askew v. Renfroe, 81 Ala., 361.

In tbe Indiana case tbe Court says: “It is objected that tbe judgment for costs against tbe plaintiff is erroneous, because sbe was a married woman. Tbis objection we bold to be utterly untenable. A married woman may, under our statute, bring a suit in ber own name for ber separate or individual property, but if sbe fiáis to establish ber right to maintain ber action, she must take tbe liabilities for costs of all other persons in such a ease as tbis.”

There is no error.