Cobb v. Rhea

Citation49 S.E. 161,137 N.C. 295
CourtUnited States State Supreme Court of North Carolina
Decision Date17 December 1904
PartiesCOBB v. RHEA.

REFERENCE—FEES OF REFEREE—APPORTIONMENT —STATUS—DECEDENTS' ESTATES — PREFERRED CLAIMS—APPEAL—TITLE OF CAUSE.

1. A motion by a referee for the payment of reference fees in consolidated causes is not an action, and an appeal from the decision rendered should be entitled by the name of the first action in which the motion was made.

2. Under Clark's Code (3d Ed.) § 533, providing that the fees of a referee shall be fixed by the court and taxed against either party, or apportioned as seems right to the court, the apportionment of referee's fees is a final judgment both as to the amount and the apportionment.

3. Under Clark's-Code (3d Ed.) § 533, providing that the fees of a referee shall be fixed by the court and taxed against either party, or apportioned as seems right to the court, the apportionment of referee's fees rests in the discretion of the judge making the allowance, subject to exception and review by appeal, but his order cannot be changed by a subsequent co-ordinate judge.

4. Under Clark's Code (3d Ed.) § 533, providing that the fees of a referee shall be fixed by the court and taxed as seems right to the court, referee's fees are simply a part of the costs, and, when not paid in advance by an administratrix, judgments therefor, including the part of the referee's fees adjudged against the estate, not being enumerated as preferred debts by Code, § 1416, take no greater pro rata than the judgment of which they are a part; nor does the fact that funds derived from a sale of realty to make assets in another proceeding are in the hands of the clerk authorize the court to order the payment of such fees out of those funds as a preferred debt.

Appeal from Superior Court, Buncombe County; Long, Judge.

Motion by T. H. Cobb, referee in certain consolidated actions, for the payment by H. E. Rhea, administratrix, of reference fees as a preferred debt. From a judgment for the I movant, the administratrix appeals. Reversed.

Geo. A. Shuford and W. J. Peele, for appellant.

Davidson, Bourne & Parker, for appellee.

CLARK, C. J. There were three actions pending in the name of H. E. Rhea, Adm'x v. R. R. Rawls et al. These were consolidated into one action. There were three other actions—Buchanan v. Rhea, Adm'x, Asheville Tobacco Warehouse Co. v. H. E. Rhea, Adm'x, et al., and Summey, Adm'x, v. Rhea, Adm'x, et al. The plaintiff, Cobb, having been allowed fees as referee and as arbitrator in said several causes years ago, and the settlement of the estate having been unaccountably delayed, made a motion in each of said four actions that the administratrix, Rhea, pay his reference fees as a preferred debt. The four motions were consolidated, and from the judgment thereon the administratrix appeals.

This not being an action, but a motion in the cause, the appeal should regularly have been entitled by the name of the first action in which the motion was made, as is the practice in taxing a prosecutor with costs (State v. Hamilton, 106 N. C. 660, 10 S. E. 854) or judgment in a cause against a witness or other person for contempt, though the practice has not always been observed in the latter class of cases. In the case of Buchanan v. Rhea, Adm'x, there was judgment at fall term, 1893, that plaintiff recover of the administratrix $3,018.60, with interest, etc., "and the costs of this action, in which costs shall be included the sum of one hundred dollars allowed to T. H. Cobb for bis services as such herein rendered." In Asheville Tobacco v. Rhea, Adm'x, a similar judgment for recovery of a debt, with interest and costs, was rendered, adding, as above, a recovery by plaintiff of "the costs of this action, including the sum.of one hundred dollars to T. H. Cobb, referee." In Summey v. Rhea, Adm'x, judgment was rendered at December term, 1895: "By consent T. H. Cobb, referee herein, is hereby allowed $300 for his services as such referee, and to be paid out of the assets of H. K. Rhea, deceased, and as part of the costs of this action, and to be taxed therein." The three actions pending in name of H. E. Rhea, Adm'x, v. Rawls et al., having been...

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8 cases
  • East Coast Fertilizer Co. Inc v. Hardee
    • United States
    • North Carolina Supreme Court
    • 16 Diciembre 1936
    ...stated. State v. Evans, 74 N.C. 324; Wilson v. Lineberger, 82 N.C. 412; Scroggs v. Stevenson, 100 N.C. 354, 6 S. E. Ill; Cobb v. Rhea, 137 N.C. 295, 49 S. E. 161; Broadhurst v. Board of Drainage Com'rs, 195 N.C. 439, 142 S.E. 477; Tallassee Power Co. v. Peacock, supra; Revis v. Ramsey, 202 ......
  • East Coast Fertilizer Co., Inc. v. Hardee
    • United States
    • North Carolina Supreme Court
    • 16 Diciembre 1936
    ... ... State v ... Evans, 74 N.C. 324; Wilson v. Lineberger, 82 ... N.C. 412; Scroggs v. Stevenson, 100 N.C. 354, 6 S.E ... 111; Cobb v. Rhea, 137 N.C. 295, 49 S.E. 161; ... Broadhurst v. Board of Drainage Com'rs, 195 N.C ... 439, 142 S.E. 477; Tallassee Power Co. v. Peacock, ... ...
  • Weltner v. Thurmond
    • United States
    • Wyoming Supreme Court
    • 24 Diciembre 1908
    ...P. 340; Boyd Co. v Arthur, (Ky.) 82 S.W. 613; Strull v. R. R. Co., (Ky.) 76 S.W. 181; In re. Sullivan Est., (Wash.) 78 P. 945; Cobb v. Rhea, (N. C.) 49 S.E. 161; Co. v. R. R. Co., (N. Y.) 70 N.E. 925; In re. Lamona Est., 29 Wash. 394; Treadwell v. Treadwell, 134 Cal. 158; Mesnager v. De Leo......
  • Rutherford College, Inc. v. Payne
    • United States
    • North Carolina Supreme Court
    • 8 Abril 1936
    ...not have an orderly administration of the law by the courts. Dockery v. Fairbanks-Morse Co., 172 N.C. 529, 90 S.E. 501; Cobb v. Rhea, 137 N.C. 295, 49 S.E. 161; Cowles v. Cowles, 121 N.C. [272] 276, 28 S.E. Henry v. Hilliard, 120 N.C. 479, 487, 27 S.E. 130; Alexander v. Alexander, 120 N.C. ......
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