Willis v. Coleburn, 169 N.C. 670 (1915)

Oct. 20, 1915 · Supreme Court of North Carolina

169 N.C. 670

A. B. WILLIS et al. v. B. J. COLEBURN and J. A. ROYALL.

(Filed 20 October, 1915.)

Costs — Successive Defendants — Sale of Interest — Subsequent Party.

Where it appears, in an action involving the title to lands, that the defendant has since then sold his interest therein to another, and the latter, at his request, has been made a party defendant, and the plaintiff has succeeded in the suit, it is proper, in taxing the cost, to tax the one later made defendant with the cost incurred subsequent to his becoming a party, as between the defendants; and to tax both parties jointly and severally with the costs, as it affects the plaintiff.

Appeal by defendants from Connor, J., at tbe June Term, 1915, of Carteret.

Motion to retax a bill of cost.

Moore & Dunn for the plaintiffs.

Julius F. Duncan for the defendants.

BbowN, J.

This is an action in the nature of trespass, in which the title to land is put in issue by the pleadings. The jury found that the plaintiff is the owner of the land; that the defendant Coleburn committed trespass thereon to the extent of $1. On a motion to retax the bill of cost, the defendant appealed from the ruling of the clerk to the judge.

It appears that the plaintiff Willis conveyed his interest in the land, pending the suit, to one Gorham, and that the defendant Coleburn conveyed his interest in the land to one J. A. Royall. Both Gorham and Royall, upon their own applications, were made respectively, parties plaintiff and defendant, at March Term, 1913. The case was tried at June Term, 1914, with the result aforesaid.

The trial judge, Daniels, adjudged that the cost of the action “be taxed against the defendants Royall and Coleburn, as the same appears to he due by each respectively.” The appeal from the clerk was heard by Judge Connor, who adjudged that, as between the defendants Coleburn and Royall, that Royall is liable for the costs of the action subsequent to his joinder in this suit, but that both defendants are jointly and severally liable to the plaintiffs for all the costs of the action.

We think this ruling correct. The record shows that the defendant Royall came in practically as a substitute for Coleburn, and of his own accord, and that he adopted the answer of his codefendant and made the cause his own. He is, therefore, liable for all the costs of the action, as the title to the land was adjudged against him.

Affirmed.