Summary
In Office v. Lockman, 12 N.C. 146, it is true, the execution against the successful party was not moved for until a return of nulla bona on a fi. fa. against the party cast, but the Court there said, in so many words, that the party is at all times answerable for his own costs, and execution was awarded against the party who had gained the suit for his own costs.
Summary of this case from Clerk v. WagonerOpinion
July Term, 1827.
From Lincoln.
A party is at all times answerable for his own costs, and though he succeed in the cause, execution may issue against him therefor, if the same cannot be made out of the party cast.
LOCKMAN recovered judgment in the court below against one Allen, and the sheriff returned "Nulla bona" to a fieri facias issuing thereon, and the fees due the officers of the court for services rendered at the instance of Lockman, the plaintiff, remaining unpaid, a notice was served on him to show cause why execution should not issue against him for the amount of those fees.
Wilson in support of the motion.
A motion being made below for execution, according to the notice, his Honor, Judge Strange, who presided, refused the motion and dismissed the proceedings; upon which, the case was brought here by appeal.
Strictly speaking, the party is at all times (147) answerable for his own costs; but under the act of 1777, Rev., ch. 115, sec. 90, the successful party being authorized to recover them from the party cast, the practice has been to wait the event of the suit, and then to issue execution against the party cast for costs; before which time the officers do not claim to be paid their costs. But when the plaintiff's costs cannot be recovered of the defendant, there is no reason why the plaintiff should not pay them. And so it was held in Merrit v. Merrit and Brehon v. Tuton, 2 N.C. 20. I therefore think that in this case the motion ought to have been allowed in the Superior Court.
PER CURIAM. Judgment reversed.
Cited: Carter v. Woods, 33 N.C. 22; Martin v. Chasteen, 75 N.C. 96; Andrews v. Whisnant, 83 N.C. 446; S. v. Wallin, 89 N.C. 578; Morris v. Morris, 92 N.C. 142; Long v. Walker, 105 N.C. 858; Speller v. Speller, 119 N.C. 356.