Opinion · Supreme Court of North Carolina
May v. . Darden
83 N.C. 237
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1880-06-05
- Topic
- bankruptcy
How later courts describe this case
- although general rule is that no appeal lies from a judgment for costs only, exception in favor of executors as fiduciaries makes decision in such cases one affecting substantial rights
Citator
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- Cited by
- 7 opinions
MAYv. DARDEN,83 N.C. 237(1880)
ALFRED MAY, Guardian, v. W. A. DARDEN, Adm'r, and others.
Supreme Court of North Carolina
(June Term, 1880.)
Although the general rule is that no appeal lies from a judgment for costs only, yet there is an exception in favor of fiduciaries, to be inferred from Bat. Rev., ch. 45, § 54, which makes the decision in those cases "one affecting substantial rights."
(Kidd v. Morrison, Phil. Eq., 31; State v. R. R. Co.,74 N.C. 287, cited and approved.)
The act referred to declares that "no costs shall be recovered in any action against an executor, administrator or collector unless it appears that the payment was unreasonably delayed or neglected, or that the defendant refused toPage 239refer the matter in controversy, pursuant to section fifty, in which cases the court may award such costs against the defendant personally or against the estate, as may be just." Bat. Rev., ch. 45, § 54. The purpose of the statute was obviously to urge these representatives to a prompt and early settlement of claims against the deceased, and to protect the estate, when proper diligence was used, from costs needlessly incurred by creditors in prosecuting their claims. The meaning is too plain to admit of doubt, and it plainly meets the present case.
Less than twenty days passed after the defendant's appointment before the action was brought. There was no controversy about the amount due as stated by the intestate himself in his last return to the probate court. The reference resulted in reducing the sum which the defendant admitted in his answer and offered to pay. The reference was as profitless as the suit was premature in allowing the administrator no time to adjust and pay the debt. Certainly payment was not in the language of the act "unreasonablydelayed" and unless it was, the evils should not fall on the intestate's estate.
The plaintiff insists, first, that no appeal lies from a judgment for costs only, (Kidd v. Morrison, Phil. Eq., 31;State v. R. D. R. R.,74 N.C. 287,) and secondly, that the costs must be borne by the party against whom a recovery is made. We think neither proposition can be maintained. The cases cited are to the effect that where the essential subject matter is destroyed, lost or adjusted, an appeal will not be allowed from a judgment disposing only of the costs. This is not our case. Here the plaintiff recovers the damages demanded and the error assigned is in that part of it which (overruling the defendant's exception) imposes the costs upon the intestate's estate. This is certainly an order or determination involving a matter of law and "which affects a substantial right claimed in the action." C. C. P., § 299.Page 240Nor are the citations from the various sections of the Code and Revisal regulating the taxation of costs generally, pertinent to the present case, for which a special provision is made.
We must therefore declare so much of the judgment as requires the costs to be paid from the intestate's estate in the hands of his administrator, the defendant Darden, erroneous, and it is in this respect reversed and the appellant will pay the costs of his appeal to this court.
Error. Judgment accordingly.