Nichols v. Goldston
58 S.E.2d 348
N.C.
1950
Check Treatment
Winborne, J.

The defendant, appellant, challenges here the correctness of the judgment overruling his demurrer, solely upon the ground that on the facts alleged in the complaint, accepted as true for purpose of considering the demurrer, plaintiff’s remedy is by motion in the cause in the former action, and not by this independent action.

No direct authority is cited by the defendant to sustain his position. The authorities cited are distinguishable in factual situations. But in the light of the authority of the judge, and of the relative legal rights of the parties, at the time and under the circumstances alleged, in respect to the provisions of the order of removal, we are of opinion that an *584 independent contract was created between the parties, or at least between the defendant and the court for the benefit of plaintiff, on which plaintiff may maintain an independent action.

The court was called upon to pass on defendant’s motion for the removal of the action from the Superior Court of Wilkes County, a proper venue, to, and for trial in the Superior Court of Rockingham County or of Guilford County, for the convenience of witnesses, and that the ends of justice he promoted. G.S. 1-83 (2). Such a motion is addressed to the legal discretion of the trial judge. See Belding v. Archer, 131 N.C. 287, 42 S.E. 800; Eames v. Armstrong, 136 N.C. 392, 48 S.E. 769; Oettinger v. Stock Co., 170 N.C. 152, 86 S.E. 957; Craven v. Munger, 170 N.C. 424, 87 S.E. 216; Causey v. Morris, 195 N.C. 532, 142 S.E. 783; Power Co. v. Klutz, 196 N.C. 358, 145 S.E. 681. But in the exercise of such discretion the trial judge was without authority to impose upon a party to the action, in the absence of his consent thereto, an obligation for which he was not then legally liable. In other words, the function of the judge was to determine, in his discretion, whether the convenience of witnesses and the promotion of justice required the removal of the action to some other county. And the order, made part of the complaint, clearly indicates that while the judge was of opinion that the convenience of witnesses required the removal of the action to Eockingham County, it is equally clear that the judge was of opinion that even so the ends of justice would not be promoted thereby, unless the defendant should pay the reasonable cost of transporting plaintiff and his witnesses to and from Eockingham County for the purpose of their appearance at the time of the trial of the action.

Patently the word “cost,” appearing in the order, was used in the sense of “expense” of providing transportation for plaintiff and his witnesses to and from the place of trial of the action. Such cost of transportation was and is not “costs” incident to the action, for which defendant would become liable in the event the judgment was against him. Costs incident to the action, or costs of the action are “entirely creatures of legislation and constitute an incident of the judgment,”- — and the liability for such costs depends upon the nature of the final judgment, and the party cast in the suit is the one upon whom the costs must fall. G.S. 6-1. Ritchie v. Ritchie, 192 N.C. 538, 135 S.E. 458, and cases cited. And there was and is no statute in this State pertaining to the cost of transporting a party and his witnesses as “costs” in the sense of costs of the action for which the losing party may be liable.

So, when the defendant acceded to the suggestion of the judge, that as a condition for the removal he, the defendant, agree to pay the cost of transporting plaintiff and his witnesses, defendant assumed an independent obligation to plaintiff, or for his benefit. And if only for his *585 benefit, still be may sue on it. Boone v. Boone, 217 N.C. 722, 9 S.E. 2d 383, and cases cited.

For reasons bere stated both judgments from which appeal is taken are

Affirmed.