Hallman v. . Dellinger

84 N.C. 1

• Court: Supreme Court of North Carolina
• Decided: February 5, 1881
• Status: Published

Opinion

Rot-fin, J.

It will be seen from the fácts'that ’the only <bond executed by the appellant, Kiser, was one to the ■defendant, -Dellinger, as surety of the plaintiff, and surely ■he cannot he liable thereon to his principal for anything. We cannot gather certainly whether the plaintiff, in order to get the amendment asked for, actually paid the-costs that had accrued up to the trial ■; though, as the amendment was ■allowed only upon ihe'condition that she did pay them, and as the transcript shows there was a trial -at the very s.ame term which -resulted favorably to her, th-e most natural inference would be that she immediately paid the amount she was adjudged to pay-, made the desired amendment, and went to trial. If this be so, then certainly she can have no recourse upon her surety- Or if it be that she has not paid, •but is only liable by reason of -the judgment against her, then it is equally clear that she oa-n have no claim to be indemnified by him. So that, in no point of view can she, ■the plaintiff and principal on the bond, h-ave any relief ■against her surety.

We do not go with the counsel of the appellant to th-e full extent of his 'argument, which if we apprehend him ■correctly was, that inasmuch as the bond executed by his ■client was given for the prosecution of the plaintiff’s action •■against the defendant, and the transcript showed that it had been successfully prosecuted, there had been no breach thereof, and therefore he could not be liable for the costs which his principal was required to pay during the progress of the action, as the price of an amendment, the effect of which amendment was to enable her to conduct her action to successful issue.

True it is, that the bond was in part what is known as a ■“prosecution bond,” but it had a further condition and bound bis principal and himself to pay to the defendant “such sum as may be for any cause recovered against the plaintiff in thé action,” thus embracing in its very term’s’ the defendant’s costs, whether for witnesses or'for the" services-of officers-of the- court incurred up to the moment of the trial. So that if the cause were here in such a shape as to permit it, we should have mu hesitation in (determining that the plaintiff and the appellant are both liable to the defendant for all Ms costsbut that in no event is he liable for any part of the plaintiff's costs, not even for services rendered her by the- officers,.commonly' known as-"court costs.”

From- the well known care with which- His Honor below investigates causes that come before him, and his usual accuracy, we very much suspect that the case presented to us differs materially from the one considered and determined by him; but there being no suggestion of- any imperfection in either the record or the case, we are constrained’ to consider it as it is..

Let this be certified to the superior court of Lincoln to the end that the costs of the: court below may be retaxed in> accordance therewith.

Error- Reversed-.