Robeson County Drainage District No. 4 v. Bullard

50 S.E.2d 742, 229 N.C. 633, 1948 N.C. LEXIS 382

• Court: Supreme Court of North Carolina
• Decided: December 15, 1948
• Status: Published

Opinion

WiNbokNe, J.

Defendants, appellants, in brief filed on this appeal, do not challenge the right of plaintiffs to maintain this action for the foreclosure of unpaid drainage assessments levied under the provisions of Chapter 156 of the General Statutes, payment of which is in default; nor do they question the validity of the assessments as levied, or the fact that they are due and unpaid. Hence, nothing else appearing, the portions of the judgment to which the first and second exceptions are taken by defendants are in accordance with law.

Moreover, since the trial court has not ruled on the questions attempted to be raised upon the agreed facts in respect to the surplus funds in hands of plaintiffs and the uncollected assessments, such questions are not now before this Court for determination. It is not amiss, however, in this connection to direct attention to certain provisions of the Drainage Act, particularly: G.S. 156-103, pertaining to the force and effect of assessments levied; G.S. 156-103, pertaining to assessment liens; G.S. 156-92, as amended by 1947 Session Laws, Chapter 982, Section 1, pertaining to control, and repair of improvements by Board of Drainage Commissioners; G.S. 156-98, pertaining to authority and discretion of Board of Drainage Commissioners in respect to excess drainage tax levied, assessed and collected; and G.S. 156-116 (3), pertaining to disposition of surplus funds.

As to the third exception: Defendants question in particular the allowance of attorneys’ fees to be charged as part of the cost in the case. They contend that G.S. 160-93, recited in the judgment as authority for such allowance, is not applicable to actions for foreclosure of delinquent drainage assessments. This contention is untenable.

It has been held by this Court that an action in the nature of an action to foreclose a mortgage, C.S. 7990, now G.S. 160-93, is open to drainage districts. Drainage Dist. v. Huffstetler, 173 N. C. 523, 92 S. E. 36; Comm. v. Epley, 190 N. C. 672, 130 S. E. 497; Wilkinson v. Boomer, 217 N. C. 217, 7 S. E. (2) 491; Nesbit v. Kafer, 222 N. C. 48, 21 S. E. (2) 903. And G.S. 160-93 provides in pertinent part, that “in any action to foreclose a special assessment the costs shall be taxed as in any other civil action, and shall include an allowance for the commissioner appointed to make the sale, which shall not be more than five per cent of the amount for which the land is sold, and one reasonable attorney’s fee for the plaintiff.” Thus the statute authorizes “one reasonable attorney’s fee for the plaintiff” to be included and taxed in the costs.

In the connection in which this provision for attorney’s fee is set forth in the statute, it would seem that the Legislature intended that the allowance of attorney’s fee should be made at the conclusion of the proceeding and not in the course of it. However, since only one attorney’s fee may be allowed in the case, we are not disposed to disturb the order made.

xkffirmed.