{
  "id": 8655774,
  "name": "J. H. SMITH v. ARTHUR, COFFIN & CO.",
  "name_abbreviation": "Smith v. Arthur, Coffin & Co.",
  "decision_date": "1895-02",
  "docket_number": "",
  "first_page": "871",
  "last_page": "874",
  "citations": [
    {
      "type": "official",
      "cite": "116 N.C. 871"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "104 N. C., 817",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
    },
    {
      "cite": "84 N. C., 1",
      "category": "reporters:state",
      "reporter": "N.C.",
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        8683615
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/84/0001-01"
      ]
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  "last_updated": "2023-07-14T15:04:38.706573+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "J. H. SMITH v. ARTHUR, COFFIN & CO."
    ],
    "opinions": [
      {
        "text": "Furohes, J.:\nOn the 12th day of July, 1889, plaintiff brought suit against defendants, returnable to Fall Term of SwaiN Superior Court. In this action R. L. Cooper became plaintiff\u2019s surety for the prosecution of his suit. Plaintiff filed his complaint and defendants filed their answer in which they set up a counter claim to plaintiff\u2019s action. At Fall Term, 1891, plaintiff recovered judgment against defendants for the sum of $2,445, and cost of action.\nBut this trial did not dispose of defendant\u2019s counter claim and. the case was retained on the docket, until that could be disposed of and execution of plaintiff\u2019s judgment was stayed until that was done. Afterwards (but it does not apper at what time) plaintiff and defendants agreed to refer the matters involved in defendants\u2019 counter claim to Mr. Newby. But it does not appear that he ever took the account.\nSometime after this plaintiff and defendants agreed upon terms of compromise as to defendant\u2019s counter claim in which defendants were to pay into, Court the sum of $1,650, and to release any further claim they might have on account of said counter claim, and plaintiff agreed to accept the $1,650 in full satisfaction of his said judgment and plaintiff also agreed in this compromise to pay all unpaid cost.\nIt appears from the findings of the Judge at Fall Term, 1894, that there remains $29.20 due Jenkins and Franks as witnesses, and $25 allowed Mr. Newby as referee, still unpaid. The sum agreed upon \u2014 $1,650\u2014was paid into court but at what time this was done does not appear.\nThe matter stood this way until Fall Term, 1894, when defendants made a motion to retax the cost that had been taxed against defendants under the judgment of 1891, and to tax them against the plaintiff and the said R. L. Cooper, his surety on the prosecution bond. This motion was resisted by Cooper but allowed by the Court, and judgment being so entered against said Cooper he appealed to this Court. Then, leaving out of view the question of time (the motion being made more than one year after the judgment at Fall Term, 1891) can the judgment of the Court appealed from be sustained ?\nSection 209 of The Oocle requires that, before a clerk shall issue a summons, he shall take from the plaintiff, a bond in the sum of $200, upon condition \u201c that the same shall be void if the plaintiff shall pay the defendant all such cost as the defendant shall recover.of him, in the action.\u201d\nIn contemplation of law, the parties pay the cost of litigation as the action proceeds and this bond is given, it is true, entirely for the benefit of defendants. The surety is not bound for plain-tiff\u2019s cost. Hallman v. Dellinger, 84 N. C., 1.\nRut the condition of the bond is to pay the defendant such cost as he shall recover of plaintiff \u201cin the action.\u201d Then, if defendants did not recover of plaintiff any cost \u201cin the action\u201d,'the surety is not bound. And we see that in this case the plaintiff recovered of defendants $2,445, and the cost of action. This amount, it is true, was reduced to $1,650, by way of compromise and agreement of the parties in which agreement the plaintiff agreed to pay certain costs. And as he agreed to do so, he ought to pay it. But this agreement to pay this cost does not bind Cooper. He was no party to this agreement. The defendant did not recover this cost in the action, and Cooper is not bound for any cost except such as defendants \u201crecovered in this action\u201d and he recovered none.\nAttorneys for defendants contend in their brief that this is a matter of discretion in the Court below\u2019 from which there is no appeal, and cite as authority for this position the case of State v. Massey, 104 N. C., 817. But that cas\u00e9-is under Section 733 of The Code and has no application to this case, and can in no way be authority for the position taken. .\nIt is also contended in the brief that no notice of appeal was given, and that the case on appeal was not served within ten days. But the facts, as they appear from the record, are otherwise.\nIt is also contended in the brief that we are bound by the facts found by the Court below. We recognize this as-the law, and decide the law of the case upon the facts as we find them in the record.\nCooper, though not a party to the original action, was. made a party to this proceeding, and had a right to appeal. We therefore hold that Cooper is not liable for this cost and that the judgment appealed from is erroneous.\nError.",
        "type": "majority",
        "author": "Furohes, J.:"
      }
    ],
    "attorneys": [
      "Mr. J. W. Cooper, for R. Gr. Cooper (appellant).",
      "Messrs. Fry <& Newby, contra."
    ],
    "corrections": "",
    "head_matter": "J. H. SMITH v. ARTHUR, COFFIN & CO.\nCosts \u2014 Surety on Prosecution Bond \u2014 Agreement of Parties as to Costs Not Binding on Surety \u2014 Appeal\u2014Practice.\n1. A surety on plaintiff\u2019s prosecution bond is liable only for \u201csuch costs as defendant shall recover of\u201d the plaintiff in the action and is not liable for any part of the plaintiff\u2019s costs.\n2. Where the plaintiff in an action obtained judgment against the defendant for a certain amount and costs but execution was stayed and the action retained until a counter claim raised \u2022 by the defendant could be disposed of, and a .compromise of such counter claim was agreed upon between the parties whereby plaintiff\u2019s judgment was reduced and he consented to pay costs; Held, that such agreement was not binding on the surety on the prosecution bond and he is not liable for any of the costs of the action.\n3. Though a surety on a prosecution bond is not a party to the action yet, when he is made a party to a proceeding to tax the costs in a case, he may appeal from the order allowing the motion to retax.\nMotioN to retax the costs in an action, beard before Shu-ford, J., at Fall Term, 1894, of SwaiN Superior Court. The facts appear in the opinion of Associate Justice FubChes.\nMr. J. W. Cooper, for R. Gr. Cooper (appellant).\nMessrs. Fry <& Newby, contra."
  },
  "file_name": "0871-01",
  "first_page_order": 899,
  "last_page_order": 902
}