City of Durham v. Davis
88 S.E. 433
N.C.
1916
Check Treatment
Walker, J.,

after stating the case: There are three questions presented in this appeal, as above stated.

First. The general rule in this Court has been that counsel fees are not allowed in civil actions or like proceedings to either party. There are exceptions, but this case does not fall within any of them. Patterson v. Miller, 72 N. C., 516; Mordecai v. Devereux, 74 N. C., 673; Gay v. Davis, 107 N. C., 269. Counsel for defendant referred us to Eevisal, secs. 2587 and 2592. We are clearly of the opinion that the counsel fees “allowed by the court”' and to be included, with the costs, in the judgment are those mentioned in Eevisal, sec. 2592, of the chapter on “Eminent Domain,” and they are such fees as are allowed to counsel who, by the appointment of the court, “appear for and protect the rights of any party in interest who is unknown or whose residence is not known and who has not appeared by an attorney or agent.” The court by that section is authorized to make an allowance for counsel fees in such cases. The question was decided in R. R. v. Godwin, 110 N. C., 175, where the present Chief Justice said: “The reference in section 1946 of The Code (now 2587 of Eevisal) to the ‘costs and counsel fees allowed by the court’ is to such counsel fees as the -court was authorized by law to tax, to wit, in the ease mentioned in section 1948 (section 2592 of Eevisal 1905). In the present instance the counsel whose fees are sought to be taxed against the railroad company was not appointed by *308 tbe court to represent tbe owner of an interest in real estate, who, or whose residence, was unknown. Tbe motion to tax an allowance in bis bebalf against tbe opposite party was, therefore, properly denied.” Counsel fees were, therefore, improperly allowed by the court, as Mrs. Davis defended by her own counsel.

Second. There also was error in allowing interest on the recovery. We have decided at this term, Winn v. Finch, ante, 272, that the judgment must correspond with the verdict, and that the court below has no power to amend the verdict by adding to it or taking anything from it or by reducing or increasing the amount of it. Its power is exhausted when it gives judgment upon it as it was rendered by the jury. We find the same doctrine laid down with reference to a verdict in a proceeding for the condemnation of land for the uses of a railroad company. Butte Elec. Ry. Co. v. Matthews, 34 Mont., 487, 493. It was there said: “The contention is made that the court had no power to direct judgment for any other sum than that mentioned in the verdict, and we think this must be sustained.” ■. . . “There is no principle of law more firmly established than that tbe judgment must follow and conform to the verdict or findings,” citing 11 Enc. of Pl. and Pr., 905; Frohner v. Rodgers, 2 Mont., 179; Kimpton v. Junilee Placer Min. Co., 41 Pac. Rep., 137. But this question was decided in R. R. v. Mfg. Co., 166 N. C., 168, where it is said, at p. 182: “The only other exception on this appeal is that the court did not allow interest on the amount of damages from the date of the condemnation of the right of way, but only from the date of the verdict and judgment. In this there was no error. Revisal, 1954, provides that all sums of money due by contract, except on penal bonds, shall bear interest. But judgments in other cases than on contract bear interest only from the date of the judgment. At common law a judgment did not carry interest when an execution was issued upon it. The statute was passed for the purpose of amending tbe law in this respect. Collais v. McLeod, 30 N. C., 221, cited in McNeill v. R. R., 138 N. C., 4. The cause of action here does not arise on contract, but is for damages on account of defendant’s land taken under the right of eminent domain. These damages fall directly under Revisal, 1954, and the law gives interest only from the rendition of the judgment.” The same rule was approved in Abernathy v. R. R., 159 N. C., 340, as to the allowance of interest, as matter of right, and as to tbe judgment bearing interest, even if rendered in an action to recover damages for a tort; but we there held that the court, when reviewing a referee’s report, did not err in considering interest in the assessment of the damages or in fixing tbe compensation of the landowner. It is presumed that the jury considered the matter of interest in assessing the damages. There was no prayer for instructions, nor any exception to the charge in regard to it, and no appeal by the defendant.

*309 Third. When tbe plaintiff excepted to tbe report of tbe commissioners or viewers and appealed to tbe Superior Court, tbe issue as to damages was tried ele novo in that court and tbe defendant recovered a large sum, tliougb sbe did not get all wbicb bad been allowed in tbe report. Counsel bave cited us to tbe provision in tbe plaintiff's charter (Pr. Laws 1899, sec. 61) wbicb reads as follows: “If any person over whose land tbe said street may pa.ss, or improvement be erected, or tbe aldermen, be dissatisfied with tbe valuation thus made, then, in that case, either party may bave an appeal to tbe next Superior Court of Durham County to be held thereafter, under tbe same rules, regulations, and restrictions as now govern appeals from judgments of justices of tbe peace.” And. also to Revisal, sec. 1905, wbicb provides that, “If on appeal from a justice of tbe peace, judgment be entered for the plaintiff, and be shall not recover on bis appeal a greater sum than was recovered before tbe justice, besides interest accrued since tbe rendition of tbe judgment, be shall not recover tbe costs of tbe appeal, but shall be liable, at tbe discretion of tbe court, to pay tbe same.” But it will be seen that this section refers to an appeal taken by tbe plaintiff or party who .seeks to recover tbe damages — here tbe defendant, and sbe has not 'appealed. It may be bard measure for plaintiff, on whose appeal the damages were largely reduced, to be taxed with all tbe costs, but tbe law is so written, as upon tbe trial.de novo tbe defendant has recovered her damages. If the case falls within Revisal, sec. 1279, tbe judge has exercised bis discretion ag’ainst tbe plaintiff, and tbe result is tbe same. Tbe costs were, therefore, properly taxed.

Tbe judgment will be amended by striking out tbe interest and tbe allowance for attorneys, and will stand only for tbe amount assessed by tbe jury, $2,000, with interest from tbe rendition of tbe judgment, and the costs.

Tbe balance of tbe sum deposited in tbe court, after satisfying tbe judgment, will be paid to tbe plaintiff.

Tbe costs of this Court will be equally divided between tbe parties and so taxed by tbe clerk.

Modified and affirmed.