Doe on the Demise of Debrule v. Scott, 53 N.C. 73

Doe on the Demise of Debrule v. Scott

53 N.C. 73 | N.C. | 1860

(74) After, this cause had been put to issue, it was, by a rule of court, referred to arbitrators, who returned for their award that they found "all the issues in favor of the defendant," but made no mention as to the costs; on the coming in of the award, the plaintiff filed various exceptions. These were overruled by his Honor, who gave *57 judgment according to the award, in favor of the defendant; also, that he recover all costs against the plaintiff. The plaintiff appealed to this Court. The only ground insisted on in this Court was in respect to that part of the judgment which subjects the plaintiff to the payment of all the costs.

In support of the decision of his Honor, Simpson v. McBee, 14 N.C. 531, and Cunningham v. Howell, 23 N.C. 9, were relied on. These cases establish the doctrine that in this State, where a case, after issue joined, is referred by a rule of Court and the award is filed, the court, for the purpose of enforcing it, enters judgment according to the award and does not simply order an attachment; and the argument is, as the court renders a judgment, the costs follow the judgment as an incident, according to the provisions of the statute, Rev. Code, chap. 31, sec. 75. "In all actions, whatsoever, the party in whose favor judgment shall be given shall be entitled to full costs."

We confess there is much force in this reasoning, especially as inCunningham v. Howell it is decided that the action of the court upon an award is a judgment of the court for the purpose of charging bail, and yet we feel bound, upon the authority of Arrington v. Battle,6 N.C. 246 (which is directly in point, and which, we presume, was not called to the attention of his Honor), to hold that the court erred in giving judgment against the plaintiff for costs. The award found all issues in favor of the defendant, but did not dispose (75) of the costs, and the judgment ought to have been that "the plaintiff take nothing, and the defendant go without day." This was all that the award authorized, and, according to the case cited, that was the judgment which the court ought to have rendered.

It was suggested that the Arrington v. Battle, as reported, was not a reference under a rule of court, but was simply a reference by an agreement of parties. But upon an examination of the record in this Court we find it was a reference "as a rule of court," and that judgment was entered "according to the award." So it is directly in point, and we do not feel at liberty to overrule it. For, when a rule of practice is fixed, the courts should adhere to it, unless some new matter occurs or there be some decisive objection. In this case there is no suggestion of either; on the contrary, the practice of adhering strictly to the award in rendering judgment, so as to give no judgment for costs unless the *58 award so directs, has uniformly obtained in all of the courts of this State up to the present instance, so far as we are informed.

Cunningham v. Howell cannot be considered as conflicting withArrington v. Battle, for the two may well stand together, the result being that a judgment according to an award is an anomaly introduced by the practice of our courts in order to enforce awards in a milder manner than by attachment, which exposed the party to process of contempt. So, although it is a judgment for the purpose of charging bail, yet it is not a judgment for the purpose of carrying costs proprio vigore, within the meaning of the statute. In other words, being a mere creature of the court, there is no reason why it may not be so fashioned as to obviate the effect of discharging the bail on the one hand, and on the other still leave to the arbitrators the right to dispose of the costs, which is done by treating it as an anomalous or quasi-judgment, which character has been impressed upon it by the cases referred to and the uniform practice in this State. Judgment reversed, and judgment for the (76) defendant, but without costs below. Of course, in this Court, the successful party is entitled to costs.

PER CURIAM. Reversed.

Cited: Harralson v. Pleasants, 61 N.C. 367.