Munday v. Henry, 46 N.C. 487, 1 Jones 487 (1854)

Aug. 1854 · Supreme Court of North Carolina

46 N.C. 487, 1 Jones 487

STEPHEN MUNDAY v. ROBERT HENRY.

Where several defendants are sued in assumpsit, and they severed in their pleas, one who had a verdict in his behalf, was fairly entitled to have the attendance of witnesses, summoned specially for him, taxed in his bill of costs, although the jury found for him upon a point in the case, which made it unnecessary to enquire as to the matter to which they were summoned.

This was a motion as to the taxation of the costs, before his Honor, Judge Dick, at the Spring Term, 1854, of Haywood Superior Court.

The suit in which the motion was made, was an action of as-sumpsit brought by the plaintiff against R. M. Henry, William L. Henry, and the defendant, Robert, for work and labor done in building a mill. The defendants pleaded severally “ General issue, payment, and set off.” The jury rendered a verdict against R. M. Henry, and W. L. Henry, but in favor Robert Henry.

Several witnesses had been summoned for Robert Henry, who spoke chiefly of the value of the work which inured to the advantage of the other defendants, but as the jury found for him on tho ground that he did not assume, were not material for him. Before the jury, the plaintiff insisted throughout upon the joint liability of Robert for the value of the work and in his defence he contended that he was not liable at all, but if liable, he was only liable to the amount proved by the witnesses in question. The motion was to strike the attendance of the witness from the costs taxed for defendants.

Upon the argument of this rule, the plaintiff contended that the defendant had fraudulently summoned these witnesses, to entitle the other defendants to get the benefit of this evidence without becoming liable for it.

His Honor refused to correct the bill of costs as insisted upon by the plaintiff, and the plaintiff appealed.

N. W. Woodfin, and J. W. Woodfin, for plaintiff.

Gfaither, and J. Baxter, for defendant.

Pearson, J.

As it is has turned out, it was unfortunate for tbe plaintiff that he made Robert Henry, sr., a defendant, but as he was sued, he had reason to suppose the plaintiff would be able to offer some evidence tending to make out a cause of action against him. As the defendants severed in their pleas, he had a right to summon witnesses in his behalf, and as a verdict was given in his favor, he had a right to have t.iose witnesses taxed as part of his costs. s There is no proof set out in the case, to support the suggestion of fraud, and there is no suggestion that the defendant, for the purpose of vexation, summoned more than two witnesses as to each fact. There is no error.

Judgment affirmed.