#### J. M. HOCKODAY v. C. M. LAWRENCE and G. T. SIKES, Executors.

(Filed 18 October, 1911.)

1. Trial by Jury — Waiver—Interpretation of Statute.

Tbe three methods prescribed by statute by which a jury trial may be waived, i. e., by failure to appear at the trial, by written consent filed with the clerk, by oral consent entered in the minutes, are the only ones by which it can be done. Revisal, sec. 540.

2. Appeal and Error — Costs—Discretion of Lower Court.

Items of cost, as they arise in an action, are in no legal sense the subject of litigation, and are only incidental in the progress of the cause; and the parties are not entitled to a trial by jury on questions raised in regard thereto.

3. Same — Issues—Pleadings Insufficient.

A next friend for a grantor in a deed haying been appointed on the ground that the grantor was ft on compos mentis, he instituted an action against the grantee to set aside the deed and restrain him from cutting the timber thereunder. A guardian was appointed for the grantor after the institution of the action, who was -made a party thereto, but took no active part therein. The restraining order was issued and was continued to the hearing. After the death of the grantor, his executors were made parties defendant and filed an answer saying “that in their opinion the action was not for the best interest of the parties.” The restraining order was dissolved and defendants taxed with costs: Held,, the defendants’ answer did not raise any issue of fact, in the absence of allegation of bad faith or mismanagement of the next friend who had instituted the action.

*320PetitioN to rebear on appeal from Lyon, J., at November Term, 1911, of Geanville.

Tbis case was decided at tbe last term, and is now before tbe Court upon a petition to rebear.

Tbe following facts appear in tbe record: In February, 1907, W. N. Fuller filed an application before tbe Clerk of tbe Superior Court of Granville County for tbe appointment of a next friend for dames M. Hockoday, wbo bad been found by a jury to be non compos mentis, and on tbe same day H. C. Hockoday was appointed sucb next friend, and instituted tbis action for tbe purpose of setting aside certain deeds executed by tbe said James M. Hockoday to tbe defendant, wbicb purported to convey tbe timber on certain lands, and also to restrain tbe defendant from cutting said timber.

A restraining order was issued in tbe action, and after notice, and upon a full bearing, tbe same was continued to tbe bearing. After tbe institution of tbe action, a guardian was appointed for tbe said James M. Hockoday, wbo was made a party, but wbo took no active part in tbe prosecution of tbe action.

In 1908 or 1909, James II. Hockoday died, leaving a will, and bis executor and devisees were made parties to tbe action by order of court, and they filed answers in wbicb they say “that in tbeir opinion tbe above-entitled action is not for tbe best interest of tbe estate of J. M. Hockoday, and should not be prosecuted further.”

A caveat was filed to said will, upon tbe ground that tbe testator did not have sufficient mental capacity to make a will, and tbe will was sustained.

At April Term, 1910, of tbe Superior Court an order was' entered in tbe action, dissolving tbe restraining order, and thereupon an arbitration was entered into between tbe defendant and tbe sureties on tbe prosecution bond, and an award was rendered in favor of tbe defendant for $82, wbicb was paid.

Tbe cause again came on for bearing at November Term, 1910, of said court. Both parties tendered judgment, tbe principal difference between them being as to costs, tbe defendant *321asking tbat judgment for costs be rendered against tbe next friend and tbe sureties on tbe prosecution bond, and tbe sureties asking tbat it be rendered against tbe executor of James M. Hockoday.

His Honor found as a fact tbat tbe action was instituted for tbe benefit of tbe estate of said Hockoday, and taxed tbe costs against tbe executor, and tbe executor excepted and appealed.

A. A. Sides and T. T. Hides for plaintiff.

Graham & Devin for defendant.

AlleN, J.

Tbe executor insists tbat be raised an issue of fact in bis answer by alleging “tbat be is of opinion tbat tbis action is not for tbe best interest of tbe estate of James M. Hockoday, and should not be prosecuted further, but should be dismissed at tbe cost of plaintiff and tbe surety on bis prosecution bond,” and tbat as be has not waived tbe right in tbe mode prescribed by statute, be is entitled to have tbis issue passed on by a jury.

It is true, as contended by tbe defendant, tbat Revisal, sec. 540, prescribes only three ways in which a trial by jury may be waived: (1) By failing to appear at tbe trial; (2) by written consent filed with tbe clerk; (3) by oral consent entered in tbe minutes; and tbat there is no such waiver on tbis record.

Tbe statute was construed to exclude other modes of waiver in Hahn v. Brinson, 133 N. C., 8.

If, therefore, an issue of fact is raised by tbe answer, tbe defendant is entitled to a reversal of tbe judgment.

In our opinion, no issue is raised, and tbe former judgment of tbis Court should stand.

Items of cost, as they arise in an action, are in no legal sense tbe subject of tbe litigation, and arise only incidentally in tbe progress of tbe cause. As was said in Martin v. Sloan, 69

N. C., 128, if parties, at tbe beginning of a suit, were to admit tbat they bad no rights involved, but wished to see which could make tbe other pay tbe costs, tbe courts would refuse to bear them.

*322- Tbe ■ different sections of Tbe Code in reference to costs clearly contemplate tbe action of tbe judge, and recognize bis power to pass upon tbe questions that may arise in determining wlio is chargeable.

“Costs may be allowed or not, in tbe discretion of tbe court.” Revisal, sec. 1267. “Costs shall be taxed.” Section 1268, etc.

If, however, tbe rule was otherwise, tbe defendant has not raised an issue in tbe answer’, because be has failed to allege bad faith or mismanagement on tbe part of tbe next friend, who is not in tbe ordinary sense a party to tbe action. Tate v. Mott, 96 N. C., 19; Smith v. Smith, 108 N. C., 369.

In tbe last case Justice Clark uses language appropriate to this case. He says: “It is to be presumed that tbe order of tbe court appointing next friends was made regularly, after due inquiry, and in tbe interest of Larkin Smith. He is tbe party plaintiff, in fact and in law, and appeared by next friends, who merely represented him, under tbe authority and appointment of tbe court. Tbe Code, sec. 180. It is contended, however, that though not strictly parties to tbe action, tbe next friends in tbe case at bar, in resisting tbe motion to discharge them, were in fact (virtually found by tbe verdict of tbe jury) resisting tbe will of Larkin Smith, a person of full age and competent to appear for himself; that such next friends officiously and unnecessarily caused themselves to 'be appointed, and that they, and not Larkin Smith, should pay tbe costs incurred by their false clamor. There is some force in this suggestion. While ‘next friends’ may not be embraced in tbe strict letter of Tbe Code, sec. 535, they come within tbe purview of that section. It was held error to tax trustees of an express trust who are parties to an action with tbe costs, unless tbe court bad adjudged that they were guilty of ‘mismanagement or bad faith in such action.’ Smith v. King, 107 N. C., 273. A fortiori it is error to tax ‘next friends’ who are not parties, without at least a similar finding. This is not alleged here in tbe answer or found by tbe court. Indeed, tbe presumption, by virtue of their appointment by tbe court, is that *323they acted in good faith, and they cannot be liable to costs unless there is an express finding against them of the facts requisite to tax them with costs.”

The allegation in the answer, that in the opinion of the executor it is not for the best interest of the estate to further prosecute the action, falls far short of an allegation of bad faith or mismanagement.

We find no error, and the petition is dismissed.

Petition dismissed.