Rider v. Lenoir County
| Decision Date | 25 November 1953 |
| Docket Number | No. 377,377 |
| Citation | 238 N.C. 632,78 S.E.2d 745 |
| Parties | RIDER et al. v. LENOIR COUNTY et al. |
| Court | North Carolina Supreme Court |
R. S. Langley, Matt H. Allen, and John G. Dawson, Kinston, for plaintiff appellees.
Chas. B. Aycock, R. A. Whitaker, and Thos. J. White, Kinston, for defendant appellants.
Plaintiffs first filed an injunction bond in the sum of $200. Thereafter, in compliance with an order of the court, they filed bond in the sum of $15,000, with the National Surety Corporation as surety. This constituted a novation and served to discharge the original bond. So then, the first question posed for decision is this: Are the plaintiffs and their surety, the National Surety Corporation, liable in any amount to defendants by reason of the wrongful issuance of the temporary restraining order herein? We must answer in the negative.
It is true the plaintiffs, in seeking to prevent the execution of the proposed plan for providing additional hospital facilities, attacked the bond election and we held that the election was in all respects valid. Even so, the real objective of the action was to prevent the expenditure of $138,713.80 of county funds in furtherance of the hospital facilities project, in addition to the $465,000 the voters had been advised would be expended. We reversed the order vacating the restraining order. Thus the restraining order is still in full force and effect.
In this connection, the defendants have either overlooked or misconstrued the language used in the closing paragraph of our former opinion. We gave defendants an opportunity to elect to '(1) consider the feasibility of conforming the proposed project to the limits authorized by the voters, or (2) submit another or other proposals to the voters.' We directed, however, that 'Meanwhile,the temporary restraining order will be deemed and treated as in force and effect to the extent of staying disbursement of funds in furtherance of the proposed hospital enlargement project and preventing further action on the part of the defendants in furtherance of the construction project, except in conformity with this opinion.' Thus we, in effect, made permanent the order restraining the defendants from any further action in furtherance of the original construction project. Rider v. Lenoir County, 236 N.C. 620, 73 S.E.2d 913. In no sense was the original restraining order wrongful or unlawful. A correct interpretation of our opinion discloses that we so held. Therefore, defendants are not now in position to insist that they are entitled to recover any amount of plaintiffs and their surety upon their injunction bond.
Plaintiffs make the somewhat novel contention that they should receive credit for the saving in the cost of construction arising out of the delay occasioned by this lawsuit. They say that during this delay economic conditions changed to the extent the defendant county was able to effect a saving of $133,286.20 when it relet the contract in accord with the opinion of this Court. They also assert--and the court below found as a fact--that the plaintiffs, by this action, have 'restored' to the general fund $138,713.80, thus effecting a total saving to the taxpayers of the county of a total of $272,000. They do not seek to participate in this saving. They only request that they be allowed therefrom a sufficient amount to pay the attorneys employed by them.
The court below made an allowance of expense money, as requested by plaintiffs, to which the defendants excepted. Their assignment of error based on this exception raises this second question for decision: Are the plaintiffs entitled to an allowance out of the $138,713.80, the defendants proposed to expend on the original project, as expense money to be used to pay counsel employed to prosecute this action? This question must likewise be answered in the negative.
Counsel fees in favor of the successful litigant to be taxed as a part of the costs were abolished in this State in 1879. Midgett v. vann, 158 N.C. 128, 73 S.E. 801; Wachovia Bank & Trust Co. v. Schneider, 235 N.C. 446, 70 S.E.2d 578. Our present statute, G.S. § 6-21, by implication, authorizes attorney fees in certain enumerated actions to be taxed as a part of the costs, to be paid out of the fund which is the subject matter of the action. Cases such as this are not included.
Where the proceeding is essentially in rem and the services inure to the benefit of those who have an interest in the property and the property is recovered or preserved by the action or proceeding, expense money is oftentimes allowed. Likewise, such allowance is made in certain equity cases prosecuted in...
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