from Wake:
In this case a motion was made by defendant to retax costs. The judgment against plaintiff on appeal to -this court was affirmed. See 79 N. C., 164. The plaintiff then filed a petition to rehear, and upon consideration thereof, the supreme court modified its former ruling — reversing the same in so far as it affirmed the judgment of nonsuit. See 82 N. C., 252.
No sufficient eause has been assigned, and we are not inclined to disturb the disposition made of the costs of the appeal and of the application for a rehearing upon the final adjudication of the cause. The plaintiff submitted to a nonsuit in deference to the opinion of the judge, that upon his unamended complaint he could not recover. It would be unreasonable to charge the plaintiff, put out of court by the erroneous ruling, with, the costs necessarily incurred in its correction. While they may be apportioned among the parties where, as in this case, a new trial is awarded, by the express provision of the statute (C. C. P., § 278), we should be reluctant to charge the wronged party with any portion unless under peculiar circumstances which do not here exist.
*598We suggest also that in cases where this discretion may be exercised, the appropriate time to call our attention to-the matter is during the sitting wherein the opinion is filed,, if sufficient time thereafter be-allowed for the purpose. The motion must be denied.
Per Curiam. Mo-tion denied.