Pearson v. Quinn
166 S.W. 746
Ark.
1914
Check Treatment
Smith, J.,

(аfter stating the facts). The decision of this court can not give any relief to the original petitioners, who are the appellees in this cause, insofar as authorizing the sale of liquors is concerned. Neither will appellants secure any relief, if the judgment of the court ‍‌​​‌​​​​​​‌​​​​‌‌‌​‌‌​‌‌​​​​​​​‌​​​‌​‌‌‌​‌​‌​‌‌‌‍below should be reversed, excеpt that they would thereby escape the payment of costs, and as no result can follow the decision of this cause, except the determination of the question of liability for the costs of the litigation, we will decline to entertain this appeal.

In the case of Wilson v. Thompson, 56 Ark. 110, in an opinion by Chief Justice Cockrill, it was said: “The circuit court erred in its judgment. The order for prohibition was made in January, 1890, and has expired by limitation of law. The appeal is therefore fruitless. For that reason the practice would have justified a dismissal, without going into the question presented by the record. The costs only are now involved, but it was not for that reason that we have felt called upon to determine the cause, for costs are only an incident оf litigation, and can not be made the object of appeal any more than of the litigation. But the cause was of practical importance, and the appellants prosecuted the appeal without delay. Having gone into the subject ‍‌​​‌​​​​​​‌​​​​‌‌‌​‌‌​‌‌​​​​​​​‌​​​‌​‌‌‌​‌​‌​‌‌‌‍of the litigation, and found that the judgment was erroneous, the appellants are entitled to their costs in both courts.” It appears that notwithstanding the appellants were there adjudged to be entitled to their costs, the appeal was not entеrtained for the purpose of determining that question; but upon the contrary, it was expressly stated that thе appeal would not be entertained and the question there involved was decided becausе of the public interest of the question involved. Here there is no question of public interest, because the action of the Legislature in passing the special act makes any action which the cоurt may take unimportant to any litigant, except to determine liability for costs.

In the case of Commissioners of Vance County v. Gill, 126 N. C. 86, it was said: “The court will not gо through the record merely to decide who would have won, if the cause of action had not died pending appeal; ‍‌​​‌​​​​​​‌​​​​‌‌‌​‌‌​‌‌​​​​​​​‌​​​‌​‌‌‌​‌​‌​‌‌‌‍that it wil-1 not decide the merits of a controversy which no longer exists, merely to dеtermine who shall pay the costs. Herring v. Pugh, 125 N. C. 437, and numerous cases there cited.” In the case of Herring v. Pugh, citеd in the last mentioned case, the court announced the conditions under which it would review and decide the merits of a cause which had been settled, or the subject-matter of which had been destroyed since the judgment below, and where the decision on appeal would merely decide who should pay the costs, and it was there said: “On the appeal in'the ‍‌​​‌​​​​​​‌​​​​‌‌‌​‌‌​‌‌​​​​​​​‌​​​‌​‌‌‌​‌​‌​‌‌‌‍main action, the judgment adverse to the defendant has been affirmed, and, the cause of action having thus been terminated, an adjudication upon the merits in this appeal would simply decide an abstract proposition of law, since judgment in this appeal could now have no possible effect but to determine who should pay the costs. The court has repeatedly held that this will not be done. Wikel v. Commissioners, 120 N. C. 451; Russell v. Campbell, 112 N. C. 404; Pritchard v. Baxter, 108 N. C. 129; Hasty v. Funderburk, 89 N. C. 93; State v. Railroad, 74 N. C. 287; Futrell v. Deans, 116 N. C. 38; Elliott v. Tyson, Ib. 184. The exceptions to the gеneral rule that this court will not decide upon a mere question ‍‌​​‌​​​​​​‌​​​​‌‌‌​‌‌​‌‌​​​​​​​‌​​​‌​‌‌‌​‌​‌​‌‌‌‍of costs, are (IX where the very question at issue is the legality of a particular item of costs (Elliott v. Tyson, 117 N. C. 114; Blount v. Simmons, 120 N. C. 19), or, (2) the liability of a prosecutor for costs in a criminal action (State v. Byrd, 93 N. C. 624), or, (3) taking the case be-, low, as properly decided, whether the costs of that court were adjudicated against the proper party. State v. Horne, 119 N. C. 853.”

In the case, of Cobb v. Hammock, 82 Ark. 584, the сounty court made an excessive allowance to the county judge on account of salary, and certain citizens appealed from that order. On appeal the circuit judge refused tо set aside the allowance, for the reason that at the time the cause was heard ih the cirсuit court a full quarter had expired, and the county judge was then entitled to all the salary for the quarter fоr which the salary had been allowed. Upon appeal to this court it was said that the judgment of the circuit court would not have been disturbed, had that court adjudged only the right to the salary; but it erroneously rendеred judgment against the citizens for the costs of the appeal from the county court. That.case was reversed because, as was there said, the citizens’ had the right to appeal to the cirсuit court from an erroneous order of the county court, and therefore the penalty of paying the costs of appeal should not have been visited upon them, because the error in the оrder appealed from had afterward become harmless.

In other words that was a case рroperly decided by the court below, but the costs were not adjudged against the proper pаrty, and that action of the court fell within the third exception in the North Carolina case, cited above.

For the reasons stated the appeal will be dismissed.