Clifton v. Wynne

• Decision Date: 30 June 1879
• Citation: 81 N.C. 160
• Court: North Carolina Supreme Court
• Parties: P. B. CLIFTON v. JAMES C. WYNNE.

81 N.C. 160

P. B. CLIFTON

v.JAMES C. WYNNE.

Supreme Court of North Carolina.

June Term, 1879.

MOTION by defendant to Retax Costs, heard at June Term, 1879, of THE SUPREME COURT.

The question presented is whether the act of 1879, ch. 41, abolishing the tax fee of attorneys in civil suits, prevents the clerks from taxing such fees in cases heard at January term, 1879, of this court after the date of the ratification of said act. See same case, 80 N. C., 145.

Messrs. C. M. Cooke and A. W. Tourgee, for plaintiff :

In opposition to the motion cited Farley v. Lea, 4 Dev. and Bat., 169; Finly v. Smith, 2 Ire., 225; Norwood v. Thorp, 64 N. C., 682; Johnson v. Sedberry, 65 N. C., 1; Bates v. Bank, Ibid., 81; Foust v. Trice, 8 Jones, 490. The act of the legislature was in force from its ratification. The judgment of the court was in effect from the first day of the term.Messrs. Lewis & Strong, for defendant :

In support of the motion, argued that the right to costs only vested by the judgment. 2 Bl. Com., 436; Bat. Rev., p. 276. Till then, it was only a mere possibility, while a vested right is an estate vested in interest where there is a present fixed right of future enjoyment. Legislature may deprive one of a possibility. Holliday v. McMillan, 79 N. C., 315. And here it is taken away unless prevented by the fiction that judgments relate to the first day of the term; the leading case Farley v. Lea, recognizing this fiction, has been overruled. 63 N. C., 668, Rule 9; Whitaker v. Wisbey, 74 E. C. L. Rep., 48. If the fiction can no longer defeat the act of an individual, as in Farley v. Lea, it cannot a fortiori defeat the act of the sovereign.

SMITH, C. J.

The general assembly at its late session passed an act “to abolish the tax fees of attorneys charged in bills of cost in civil suits,” which was ratified and took effect on the 14th day of February, 1879. Acts of 1879, ch. 41.

The first section enacts “that clerks of the supreme and superior courts shall not include or charge in any bill of costs any attorney's fee in any civil suit hereafter determined in any court of the state, and that all laws or parts of laws coming in conflict and within the meaning and purview of this act, be and they are hereby repealed.”

The defendant's counsel moved to have the fee taxed by the clerk for the use of the relator's counsel stricken from the bill of costs, and thus the question is raised whether the act applies to causes depending in this court and disposed of at the last term, which began on the first Monday in January and ended in April.

The act in direct terms forbids the taxation of “an attorney's fee in any civil suit” thereafter determined, and obviously includes the present case, unless it is exempted under the rule or fiction which assigns to the first day all the business of the entire session of a court, and hence considers the cause to have been determined before the law was passed. The rule may be more accurately stated as condensing all the days of a session into a single day, and that the first, whenever the rights and interest of suitors are to be affected. It is also an established rule of the court that all matters depending before it, and its action upon them, are in fieri, undetermined, until its close, and meanwhile under its control. No cause is, properly speaking, finally disposed of, put an end to, or in the words of the act, determined, until the end of the term, and then the action of the court is referred to its commencement to avoid unseemly controversy for priority or advantage among suitors whose cases were acted on at different periods of the session. But a fiction adopted for convenience and to promote the ends of justice, will not be allowed to defeat the substantial rights of others, nor to obstruct the clear expression of the legislative will. “The court will not endure,” says Lord MANSFIELD in Johnson v. Smith, 2 Burr., 950, 963, 1 Wm. Black., 207, 215, “that a mere form or fiction of law, introduced for the sake of justice, should work a wrong, contrary to the real truth and substance of the thing.”

The extent to which the fiction has been carried in this state will be seen in the cases cited by counsel in the argument. Farley v. Lea, 4 Dev. & Bat., 169; Weeks v. Weeks, 5 Ire. Eq., 111; Foust v. Trice, 8 Jones, 490.

The subject was considered by this court at June term, 1869, when framing rules of practice, and the absurdity of applying the rule to cases of appeal from a superior court...