139 N.C. 17 | N.C. | 1905
after stating the facts: The contention of tlic plaintiff is that, as a new trial was granted in his first appeal, he cannot be taxed with any of the costs of the former trial. The matter of costs is regulated solely by the statute and the correctness of plaintiffs contention depends, therefore, upon what is its true construction, and must be determined by its meaning. Ry section 525 of The Code, costs are allowed, of course, to the plaintiff, upon a recovery, in cases of which a justice of the peace has no jurisdiction. This action was of that character, it being one brought for the purpose of subjecting land to the payment of intestate’s debts. By section 526, costs are allowed, of course, to the defendant, unless the plaintiff be entitled to recover them. These are the general provisions of the statute relating to the taxation of costs. Sections 527 and 540 provide for the .costs in appellate courts, and give the court a discretion in respect to the taxation of such costs when a new trial is ordered or the judgment of tire lower court is not wholly reversed. These provisions need no special consideration in this case, as plaintiff has been allowed all the costs of his first appeal. It will be observed that by section 525 the condition precedent to the plaintiff’s >right to costs is that he shall recover in the action. It is perfectly clear that this recovery, in a case like the one under consideration, refers to a final determination upon the merits. The plaintiff has never “recovered” in this action in any sense. He was successful in this court to the extent of obtaining a new trial, but that by no means was equivalent to a recovery in the court below. This court merely ordered a new trial and in that state of the case neither party had “recovered” in. the action and the question of costs was left open to be settled by the result of the final trial of the case. Plaintiff relies on a provision of section 540 of The Code to the effect that, if the appellant recovers judgment in the appellate court, he shall be allowed the costs of that court and such costs as he should have recovered in
The rule is stated in Cartwright v. Sale, 16 Ohio, 316, with special application to facts such as we have in this case. “The judgment of reversal or affirmance only embraces the
We have discussed the question more at length than we would otherwise have done, because of the strenuous insistence of learned counsel that the meaning of the statute is the reverse of that we have adopted. It is proper, though, that we should remove doubts which seem to exist with some as to what costs are taxable in cases like this by declaring the rule which should govern, with a full statement of our reasons therefor, so that the practice may be clearly settled, if possible, once for all, as the question may be one of frequent recurrence.
No Error.