Midgett v. Vann

• Decision Date: 21 February 1912
• Citation: 73 S.E. 801,158 N.C. 128
• Court: North Carolina Supreme Court
• Parties: MIDGETT. v. VANN.

73 S.E. 801

(158 N.C. 128)

MIDGETT.

v.VANN.

Supreme Court of North Carolina.

Feb. 21, 1912.

Plaintiff's Appeal.

1. Appeal and Error (§ 1195^*)—Disposition of Cause—Judgment of Appellate Court —Conclusiveness.

A judgment of the Supreme Court, on dismissing defendant's appeal, that defendant was liable for certain costs, was final and could only be corrected or reversed by the Supreme Court, and hence the superior court's ruling that defendant was entitled to recover back such costs was erroneous.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4661-4G65; Dec. Dig. § 1195.*]

2. Costs (§ 169*) — Items — Personal Expenses.

A defendant is not entitled to recover as costs the sum paid as personal expenses in attending the hearing upon an injunction.

[Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 652, 653, 657, 658; Dec. Dig. § 169.*]

3. Injunction (§ 252*)—Action on Bond-Damages.

Under the express provision of Revisal 1905, § 817, the only damages recoverable upon an injunction bond are such damages as may be sustained by the party enjoined, by reason of the injunction.

[Ed. Note.—For other cases, see Injunction, Cent. Dig. § 586; Dec. Dig. § 252.*]

Defendant's Appeal.

4. Injunction •(§ 188*)—Dismissal—Costs-Attorney's Fees.

Attorney's fees are not recoverable as costs for damages by defendant in an action for an injunction.

[Ed. Note.—For other cases, see Injunction, Cent. Dig. § 408; Dec. Dig. § 188.*]

Appeal from Superior Court, Dare County; Cline, Judge.

Action for an injunction by S. E. Midgett against Thomas S. Meekins, former fish commissioner, in which C. S. Vann, successor to Meekins, became party defendant. Motion for judgment for damages against sureties on injunction bond, heard upon exceptions to report of referee. Exceptions overruled, and report confirmed, and both parties appeal. Reversed on plaintiff's appeal and affirmed on defendant's appeal.

B. G. Crisp and E. F. Aydlett, for plaintiff.

J. C. B. Ehringhaus, for defendant.

Plaintiff's Appeal.

BROWN, J. There were seven actions brought in the superior court of Dare county against Thomas S. Meekins, former fish com missioner, to enjoin him from removing certain fish nets from the waters in which they were set upon the ground that they were not set within prohibited territory. The present defendant, C. S. Vann, succeeded Meekins as fish commissioner and took his place as defendant in said actions. The cases were considered together and heard by his honor Judge Justice, who continued the restraining order to the hearing. Defendant Vann appealed. This appeal was dismissed at August term, 1911, for failure upon part of defendant, appellant, to have the record printed, as required by the rule of this court, and the judgment of the Supreme Court required defendant to pay costs of appeal. At May term, 1911, of the superior court, plaintiff submitted to a judgment of nonsuit. There was a motion for judgment for damages, which was heard by a referee, whose judgment was affirmed by the superior court. The defendant claims damages as shown by the report: (1) For $6.35, cost in the Supreme Court, and which was adjudged against the defendant by this court at August term, 1911. (2) For $12.50, expenses of the fish commissioner in attending the hearing of the cases. (3) Two hundred dollars attorney fees in the cases. There were seven of these actions brought, and it was agreed that all should abide the-decision of one case. The referee held: First. That the defendant was entitled to recover back the $6.35 cost. Second. That the defendant is entitled to recover the $12.50 personal expenses of the defendant in attending the hearings. The court overruled both exceptions and gave judgment against plaintiff. Plaintiff excepted. The referee refused to allow defendant attorney fees. Defendant excepted. Court overruled defendant's exceptions.

1. The ruling of the court that the defendant is entitled to recover back the costs taxed against the defendant by the judgment of the Supreme Court is erroneous. That judgment was final and could only be corrected or reversed by this court. To permit defendant to recover back costs of his dismissed appeal would in effect nullify the judgment of this court.

2. The defendant is not entitled to recover the sum paid as personal expenses in attending the hearing upon the injunction before Judge Justice. A party to an action is not entitled to recover his personal expenses in attending court. Hyman v. Devereux, 65 N. C. 589.

The only damages recoverable upon an injunction bond given in pursuance of our statute (Revisal, § 817) are such damages as may be sustained by the party enjoined by reason of the injunction. Hyman v. Devereux, supra.

There is no evidence that defendant Vann has sustained any damages because he wasnot allowed to remove plaintiff's nets from the disputed waters, and therefore he can recover nothing upon the injunction bond.

Upon plaintiff's appeal his honor's...