Howell v. Howell, 40 N.C. 218, 5 Ired. Eq. 218 (1848)

Aug. 1848 · Supreme Court of North Carolina

40 N.C. 218, 5 Ired. Eq. 218

N. S. HOWELL & AL. vs. HOWELL AND BATTLE.

Where an appeal was taken from the decision of the Court on motion to dissolve an injunction, and the parties afterwards compromised the matters in dispute, this Court will not look into the merits of the ease, for the purpose of awarding costs, but will certify to the Court below that their order mus¿ stand, and as to the costs of the appeal will direct each party to pay his own.

Appeal from an interlocutory order of the Court of Equity of Haywood County, refusing to .dissolve an injunction, at the Spring Term 1844.

The bill was filed in October 1843, and the object of it was to restrain the defendants from carrying out of the State a slave and other chattels, claimed by the plaintiffs under a conveyance from the defendant Howell and to compel the defendants to give security for the forthcoming of the property, the defendant Howell having been left in possession of the slave, and other articles for his enjoyment during life, upon certain terms specified in a separate agreement and having recently conveyed them absolutely to the other defendant Battle. The defendant put in an answer in March 1S44 and then moved to dissolve the injunction and discharge a sequestration, which had been ordered on the bill. The Court refused the motion, but allowed the defendants an appeal. At this term the counsel for the appellants wished to bring on the appeal for hearing ; but the counsel for the plaintiff, at the same time, stating to the Court that, pending the appeal, the plaintiffs brought an action at law for the property and that they have recently compromised and that the plaintiffs have received from the defendants all the property and are now in possession of it. Each party, however, insisted that the merits were with him in the case and on that ground claimed costs.

Francis and N. W, Woodjin, for the plaintiff.

Edney and Gaither, for the defendants.

Ruffin, C. J.

The counsel have properly advised the Court of the present state of this controversy, and we think it must prevent any further proceeding in it here. The whole purpose of the suit has been answered by the acts of the parties themselves. They have made it useless, and therefore improper, that the Court should determine whether the order, appealed from, was erroneous or not. Upon that ground the Court must decline con„ sidering that question at all, and as a matter of course, the order must stand, and a certificate to that effect be transmitted to the Court of Equity.- The appeal being from an interlocutory order,-the Court can only dispose of the costs of the appeal, leaving the costs of the causé to the Court below. As an. appeal would not be entertained upon the single question of costs, so the Court will not, in a case situated like this, look into the merits, for the mere purpose of seeing how the costs ought to have gone, if the case had come on for a, decision upon the merits. But, as neither party-would bring on the appeal for upwards of four years arid until a decision of it became immaterial and consequently improper, we think that costs ought not to be given id this Court, but that each party should pay his own.

Per Curiam.

Ordered accordingly.