#### J. C. HORNER v. OXFORD WATER AND ELECTRIC COMPANY.

(Filed 9 November, 1911.)

1. Appeal and Error — Taxing Costs — Reference—Questions of Law.

A ruling of the Superior Court judge that as a matter of law he is precluded by a former judgment from taxing the cost of a reference, is reviewable in the Supreme Court.

*495 2. Same — Procedure—Interpretation of Statutes.

■ A former judgment appealed from and affirmed by tbe Supreme Court, “that tbe’ defendants do recover against tbe plaintiff and tbe surety on his prosecution bond tbe costs of this action,” does not preclude a subsequent trial judge from taxing tbe cost of z-eference “against either party or apportioning it among tbe parties in Ms discretion” (Revisal, sec. 1268) ; and, in this case, it is ordered that at a subsequent term tbe trial judge pass on tbe question and tax tbe cost of tbe reference in accordance with tbe statute.

Appeal from Daniels, J., at May Term, 1911, of Geahtille.

Motion to divide tbe fees of referee and commissioner between plaintiff and defendant, under Kevisal, sec. 1268. Tbe court denied tbe motion, and plaintiff appealed.

Graham & Devin and B. S. Royster for plaintiff.

John 1'7. Hinsdale for defendant.

Beoww, J.

At August Term, 1910, of tbe Superior Court of Granville County, Judge Lyon rendered judgment against tbe plaintiff, dissolving tbe restraining order theretofore issued, and ordered, “That tbe defendants do recover against tbe plaintiff and tbe surety on bis prosecution bond tbe costs of this action.” From said judgment plaintiff appealed to Supreme Court, wbicb affirmed tbe judgment. 153 N. C., 535.

Upon tbe opinion being certified down, tbe defendant, at May Term, 1911, moved for judgment in accordance witb said opinion. Plaintiff moved that tbe allowance to tbe referee and stenographer and commissioner to take depositions be paid equally by plaintiff and defendant. Tbe court “being of opinion that be is concluded by tbe judgment rendered at a former term, adjudging that tbe defendant recover of plaintiff tbe payment by defendant of any part of tbe costs, adjudged that tbe defendant above named do recover against plaintiff above named tbe costs of this action, including an allowance to tbe referee of $375; $75 of wbicb shall be paid to bis stenographer as a part of tbe costs of tbe referee, and costs of taking depositions, Francis J. McLaughlin, commissioner, $38.75, and Harry Win-field, commissioner, $20. It is ordered that tbe clerk shall tax tbe said amounts in tbe costs in this action.” From this ruling tbe plaintiff appealed.

*496The court made no allowance to referee and commissioner at August Term, 1910, when the judgment was rendered which this Court affirmed; but those fees were fixed and allowed by Judge Daniels at May Term, 1911. His Honor bases his refusal to apportion them upon a supposed lack of power, thinking he was precluded by the former judgment.

In that he was in error, and as he founds his ruling upon a lack of power, it is reviewable. S. v. Fuller, 114 N. C., 894; Martin v. Bank, 131 N. C. 123. "We think he had as much right to apportion or divide the fees, if he saw fit to do so, as he had to fix them at all. •

Under Revisal, sec. 1268, fees of referees and commissioners to take depositions may be taxed against either party or apportioned among the parties, in the discretion of the Superior Court. Cabb v. Rhea, 137 N. C., 298; Field v. Wheeler, 120 N. C., 269.

As the judge who tried the cause and rendered judgment failed to pass on the matter of referee’s fees and commissions, and as the judgment then rendered contains no reference to them, it was entirely within the power of the Superior Court at a subsequent term to adjust them.

The Superior Court will hear and pass on the motion and tax them as a whole against plaintiff or apportion them in its sound discretion between plaintiff and defendant..,

Reversed.