Clerk's Office v. Allen, 52 N.C. 156, 7 Jones 156 (1859)

Dec. 1859 · Supreme Court of North Carolina

52 N.C. 156, 7 Jones 156

CLERK’S OFFICE, &c., v. RICHARD ALLEN.

Where the plaintiff, in a suit, was ordered to pay certain costs of witnesses, and fees to the clerk and sheriff, it was Held not irregular to issue a fi.fa. for the same, in the name of the clerk’s office, and on its appearing that he was insolvent, it was Held further, that the Court mig'ht properly order such costs to be paid out of certain money, in the hands of the sheriff, raised on an execution in favor of such insolvent party.

Motion as to costs, before Dick, J., at the Fall Term, 1859, of Rockingham Superior Court.

The defendant, in this motion, Richard Allen, had brought a suit and recovered against one Summers, but was ordered to pay the costs of the attendance of certain witnesses, also the clerk’s costs for issuing the subpoenas and the sheriff’s for serving them, and execution was ordered to issue therefor. The clerk having taxed these costs, issued a fieri facias against Allen, in the name of the clerk’s office as plaintiff. At the return of this process, the sheriff made an affidavit, stating that he had not been able to find any property wherewith to satisfy this execution, and that the said Allen was insolvent, except as to a sum of money in his hands, which had been raised on an execution in his favor against Summers.

On this affidavit, it was moved that the sheriff apply so much of the said money to the satisfaction of the fieri facias aforesaid, as was sufficient for that purpose, which was ordered by the Court, and the defendant, in this motion, appealed.

Moreheacl, for the plaintiff.

Gorrellfox the defendant.

Battle, J.

The counsel for the defendant, Allen, who was plaintiff in the Court below, in the suit of Allen v. Summers, contends that what purported to be a judgment rendered against him, at Spring Term, 1859, was a nullity. 1st, because it was partly in favor of witnesses, not named, and 2ndly, because it was partly in favor of the “ clerk’s office,” which is not a person, either natural or artificial, but only “ a place,” and he concludes, as the judgment was a nullity, no execution could rightfully be issued thereon.

The counsel contends further, that the Court had no right to order the payment of what was due to the officers of the court and witnesses (whose fees and attendance was charged to the plaintiff in that suit) out of the money collected for him, by the sheriff, on the execution against the defendant, Summers.

We are clearly of opinion, that both objections are untenable. What the counsel calls a judgment, is not such an one as is given in favor of one of the parties in an adversary suit; but it is only an order, which every court has a right to make to enforce the taxing and payment of costs to the officers and witnesses. Each party is, at all times, liable to pay his own costs, and wThenever it may be necessary, such pa_yment may be enforced by a rule upon him and an attachment thereon, or by the milder process of fieri facias ; Merritt v. Merritt, 1 Hay Rep. 20 ; Superior Court office v. Lockman, 1 Dev. Rep. 146; Officer v. Taylor, Ibid. 99 ; Clerk of Davidson County Court v. Wagner, 4 Ire. Rep. 131. The order in the present case, is very much the same as those made in the cases referred to. The costs were, of course, to be ascertained by the clerk’s taxation, and the name of the clerk’s office was used as a mere formality, the substance of the order being, that execution should issue to collect what the clerk should find to be due to the officers and witnesses, whose fees, the Court had directed to be taxed against the plaintiff.

Upon the second point, we have no doubt that the Court had the power to appropriate the money in the sheriff’s hands, belonging to the plaintiff in the execution, to the payment of bis own costs, which he, under the order of the Court, was bound to pay. We have seen that such payment might have been enforced by a rule and attachment, and it would be strange that the Court, instead of resorting to that stringent remedy, should not have the power to take the party’s money, then in the custody of one of its officers, and apply it, as the party himself ought to have done, under its order. That the Court does possess such power, seems to be settled both upon reason and authority. See Armistead v. Philpot, 1 Doug. Rep. 230; Turner v. Fendall, 1 Cranch Rep. 117, (1 Curtis 361). The judgment of the Superior Court must be affirmed.

Per Curiam,

Judgment affirmed.