State ex rel. Pasquotank County v. American Surety Co., 202 N.C. 284 (1932)

Feb. 17, 1932 · Supreme Court of North Carolina

202 N.C. 284

STATE OF NORTH CAROLINA, Upon Relation of PASQUOTANK COUNTY; J. C. THOMPSON, C. A. OWNLEY, W. O. ETHERIDGE, G. D. JENNINGS, JOHN T. WILLIAMS, H. CARTWRIGHT and C. B. MUNDEN, Commissioners of Pasquotank County; N. E. AYDLETT, Clerk Superior Court of Pasquotank County; and N. E. AYDLETT, Receiver of BERENICE and ESTHER LEE BAILEY, ROSA and SAMUEL BATEMAN, ALMA BERRY, Children of MARY W. BRIGHT, MILTON BRIGHT, VIVIAN BRIGHT, WAYLAND BRITTON, ERNEST F. CARTWRIGHT, JOHN T. CARTWRIGHT, STERLING W. CARTWRIGHT, MARGARET CHORY, BRUCE CLIFTON, GRAHAM COMMANDER, RAYMOND and ROLAND DOWNING, BESSIE and MILDRED EVANS, DANIEL B. FEARING, GLENN and EUGENE GODFREY, CURT HEATH, Jr., ROBERT and ISAAC HOLLY, Heirs and Wife of B. F. JAMES, LUTHER JERNIGAN, VIOLA JERNIGAN, IRVING L. and WILLIE M. JOHNSON, RUDOLPH JONES, ROBERT V. LAMB, ANN MARKHAM, HENRY C. MARKHAM, MARGARET MARKHAM, VIOLET, EDGAR, RUBIE and EDWIN MORGAN, OLIVER, ERNEST W., ODEL and VERNON L. OVERTON, RICHARD PENDLETON, FANNIE MAY, BENJAMIN and CLARA ROGERSON, CLARA ROLFE, JULIAN, MARY and ELEANOR RAPER, PHOEBE SESSOM, JOHN and FRANK SUTTON, FRANCES TOXEY, JOHNNIE L., INEZ, CARLTON, LILLIAN and RUTH B. WELCH, KATIE, MINNIE, GRANDY, THELMA, RUTH and ETHEL WHALEY, ELIZABETH WHITE, MARY LOUISE WHITE, ROSALIA, DURAD and MABEL WHITEHEAD, BERENICE and SARAH WILLIAMS, CATHERINE CHORY WILLIAMS, MARGARET WILSON, GEORGIA HEATH, v. AMERICAN SURETY COMPANY OF NEW YORK and JOHN L. ROGERSON, Administrator of ERNEST L. SAWYER, Deceased.

(Filed 17 February, 1932.)

Costs C a — Order taxing future coste in this case held premature.

An order continuing a receivership involved in an action and taxing the defendants with all costs accruing is held premajture as to the taxing of future costs and to that extent the judgment is modified on appeal.

Appeal by defendant Surety Company from Frizzelle, J., at November Term, 1931, of PasquotaNK.

Error.

M. B. Simpson and Ehrmgliaus & Hall for plaintiffs.

J. H. LeBoy, Jr., and P. W. McMullan for defendants.

Pee Cueiam.

This case was here before — Pasquotank County v. Surety Co., 201 N. C., 325.

The following judgment was rendered by the court below; “This cause coming on to be heard, and it appearing to the court that the opinion of the Supreme Court affirming the judgment heretofore rendered has been certified to this court and been on file for more than ten days prior to this term; and it further appearing from said opinion that tbe plaintiffs are entitled to tbe possession of tbe notes and securities referred to in tbe judgment in tbis case as collateral security for tbe full amount of tbe indebtedness herein adjudged against tbe defendant administrator in tbe sum of $59,811.81, with interest thereon from 9 April, 1929, and to have tbe receivership heretofore ordered in this cause discharged and terminated; and it further appearing that tbe defendants herein have requested tbe court to continue tbe receivership; it is now, therefore, ordered that tbis cause be retained and tbe receivership continued for further orders and that said receivers continue to make diligent effort to collect said securities, reporting their progress from time to time to tbis court. It is further ordered that all collections shall be turned over in toto to the plaintiffs until tbe amount of same plus the recovery heretofore obtained against the bonds shall be equal to the full amount of the indebtedness adjudged against the administrator. The plaintiffs will recover against the defendants the costs of the receivership from this day forward, and the costs in this action to be taxed by the clerk.”

We think that so much of the judgment that the plaintiff recover against the defendants “costs of the receivership from this day forward” premature and should be stricken out. To this extent there is error in the judgment.

Error.