Hickson Lumber Co. v. Gay Lumber Co.

67 S.E. 579 | N.C. | 1910

The facts are stated in the opinion of the Court. At June Term, 1908, of LENOIR, Neal, J., made an order in this cause apportioning the costs and the compensation of the receiver by prorating the amount among all the claimants to the fund. On appeal, this was held to be an error, and that these amounts should be taxed against the fund.Lumber Co. v. Lumber Co., 150 N.C. 281. The effect is to tax the whole sum against the holder of the lowest lien, and to pay the prior liens in full.

The appellant, the Hickson Lumber Company, which holds the lien of least priority, contends that as it did not appeal, the amount of the judgment against it at the June Term, 1908, cannot be affected. But the very nature of the exception in the former appeal called in question the correctness of prorating the costs and other expenses of this litigation, and the present appellant was therefore virtually the appellee in that appeal. It was not necessary, nor proper, that the receiver and those entitled to the other costs in the case should have appealed. Bank v. Bank, 127 N.C. 435; Strausv. Loan Assn., 118 N.C. 563. They had a prior lien on the fund, and how the payment of the remainder of the fund should be apportioned was a matter between the litigants, and concerned them only.

The court below has properly adjudged that the payment of the costs and receiver's fees should come out of the fund, i. e., be paid out of the sum coming to the lienholders of the lowest priority, and that as there has been overpayment to them, the deficiency shall be collected out of the refunding bond given by the appellant.

Affirmed.

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