37 N.C. App. 382 | N.C. Ct. App. | 1978
Plaintiff’s Appeal
By his first assignment of error, plaintiff contends the trial court erred in finding as a fact that plaintiff’s counsel knew that the cost of taking plaintiff’s deposition in the previous action would be an item of costs in that action. Plaintiff argues that this finding is not supported by competent evidence. We find no merit in this assignment.
It is clear that findings of fact may be based on competent evidence presented and on reasonable inferences arising therefrom. The evidence that plaintiff’s counsel, (a licensed attorney with many years’ experience in the practice of law), attended and participated in the taking of plaintiff’s deposition; that soon after plaintiff, through said counsel, took a voluntary dismissal, at the request of defendant’s counsel, the $103 disbursement for the deposition was entered as an item of costs in the record; and that thereafter, before instituting the new action, plaintiff’s counsel discussed the item with the assistant clerk of the superior court was more than sufficient to raise a reasonable inference that counsel knew that the item would be in-
By his second and third assignments of error, plaintiff contends the trial court erred in finding that the $103 item for the deposition was properly assessed or taxed by the clerk of the superior court and included in the bill of costs for the previous action. We find no merit in these assignments.
Plaintiff argues that under G.S. 6-21(6) costs for taking depositions may be taxed against either party, or apportioned among the parties, in the discretion of the court; and that the assistant clerk of the superior court had no authority to tax the $103 item against plaintiff.
We think G.S. 6-21(6) must be considered in pari materia with at least two other statutes, G.S. 1-7 and G.S. 1A-1, Rule 41(d).
G.S. 1-7 provides:
When court means clerk. — In the following sections which confer jurisdiction or power, or impose duties, where the words “superior court,” or “court,” in reference to a superior court are used, they mean the clerk of the superior court, unless otherwise specially stated, or unless reference is made to a regular session of the court, in which cases the judge of the court alone is meant.
G.S. 1A-1, Rule 41(d), on the date of the order in question, provided:
(d) Costs. —A plaintiff who dismisses an action or claim under section (a) of this rule shall be taxed with the costs of the action unless the action was brought in forma pauperis. If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant before the payment of the costs of the action previously dismissed, unless such previous action was brought in forma pauperis, the court, upon motion of the defendant, shall dismiss the action.
G.S. 6-7 vests the clerk of the superior court with the authority and responsibility to “enter in the case file, after judgment, the costs allowed by law”. Certainly in this case, which evidently never reached the trial calendar and in which the judge
To adopt plaintiff’s argument would mean that costs in all matters enumerated in G.S. 6-21 would have to be taxed by the judge. These include all costs and expenses incurred in special proceedings for the division or sale of either real estate or personal property under the partition statutes. We cannot perceive that to be the law.
Furthermore, Rule 41(d), provides that a plaintiff who voluntarily dismisses his claim or action shall be taxed with the costs of the action unless it was brought in forma pauperis.
By his fifth and final assignment of error plaintiff contends the trial court erred in entering the order dismissing his action. We find no merit in this assignment.
As of the date of the entry of the order from which defendant appeals, G.S. 1A-1, Rule 41(d), was unequivocal in its requirement that the court, upon motion of the defendant, “shall” dismiss the action of a plaintiff who took a voluntary dismissal in a prior action not brought in forma pauperis and thereafter instituted a new action against the same defendant on the same claim without paying the costs of the first action.
We are aware of the changes in Rule 41(d) made by Chapter 290 of the 1977 Session Laws which provides as follows:
Section 1. G.S. 1A-1, Rule 41(d), as it appears in the 1969 Replacement of Volume 1A, is amended by rewriting the second sentence and by adding another sentence to read as follows:
“If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant before the payment of the costs of the action previously dismissed, unless such previous action was brought in forma pauperis, the court, upon motion of the defendant, shall make an order for the payment of such costs by the plaintiff within 30 days and shall stay the proceedings in the action until the plaintiff has complied with*388 the order. If the plaintiff does not comply with the order, the court shall dismiss the action.”
However, § 2 of said Chapter 290 provides that the act “shall become effective on January 1, 1978.”
Since the order in question was entered on 2 September 1977, we must construe Rule 41 (d) as it read as of that date. We hold that the trial court properly dismissed plaintiffs action. Cheshire v. Aircraft Corp., 17 N.C. App. 74, 193 S.E. 2d 362 (1972).
Defendant’s Appeal
Inasmuch as we are affirming the order dismissing plaintiff’s action and from which plaintiff appeals, we find it unnecessary to pass upon the question raised by defendant in his appeal from the order allowing plaintiff to amend his complaint.
* * *
For the reasons stated, the order dismissing plaintiff’s action is
Affirmed.
