Ward v. Taylor

• Decision Date: 01 May 1984
• Docket Number: No. 833SC56,833SC56
• Citation: 314 S.E.2d 814,68 N.C.App. 74
• Court: North Carolina Court of Appeals
• Parties: William F. WARD and Kennedy W. Ward v. John T. TAYLOR, Jr.

Page 814

314 S.E.2d 814

68 N.C.App. 74

William F. WARD and Kennedy W. Ward v. John T. TAYLOR, Jr.

No. 833SC56.

Court of Appeals of North Carolina.

May 1, 1984.

Ward, Ward, Willey & Ward by A.D. Ward, New Bern, for plaintiffs-respondents-appellants Ward.

Henderson & Baxter, P.A. by David S. Henderson, New Bern, for defendant-appellee Taylor.

Dunn & Dunn by Raymond E. Dunn, New Bern, for movant-appellee Daniels.

JOHNSON, Judge.

I

We must first address the question of whether the court had authority to entertain Daniels' motion in the previously dismissed cause, 68CVS1176.

A

G.S. 1A-1, Rule 41(d), "Costs," provides that "A plaintiff who dismisses an action or claim under section (a) of this rule shall be taxed with the costs of the action unless the action was brought in forma pauperis." Although a voluntary dismissal is not per se a final judgment, this Court has held that the clerk of superior court has authority to tax costs against a plaintiff who took a dismissal. Thigpen v. Piver, 37 N.C.App. 382, 246 S.E.2d 67, disc. review denied, 295 N.C. 653, 248 S.E.2d 257 (1978); G.S. 6-7. In fact, the clerk is ordinarily the proper official to tax such costs. Thigpen v. Piver, supra; G.S. 1-7. Here, however, the court appointed a surveyor in a boundary dispute, pursuant to G.S. 38-4. "When in any action or special proceeding pending in the Superior Court the boundaries of lands are drawn into question, the court may, if deemed necessary, order a survey ...," G.S. 38-4(a); the court may appoint one or more surveyors, G.S. 38-4(b); and it "shall make an allowance for the fees of the surveyor or surveyors and they shall be taxed as a part of the costs." G.S. 38-4(d). The Supreme Court has consistently held that where such a survey has been ordered and made, and the trial judge has failed to order compensation, the clerk has no authority to do so. Ipock v. Miller, 245 N.C. 585, 96 S.E.2d 729 (1957); Cannon v. Briggs, 174 N.C. 740, 94 S.E. 519 (1917); LaRoque v. Kennedy, 156 N.C. 360, 72 S.E. 454 (1911). Therefore, movant could only look to the superior court for relief; only that court had authority to allow and tax his fees as costs.

B

It is well established that where plaintiff takes a voluntary dismissal pursuant to G.S. 1A-1, Rule 41(a)(1), no suit is pending thereafter on which the court could make a final order. West v. Reddick Inc., 38 N.C.App. 370, 248 S.E.2d 112 (1978) (court had no power to enter "supplemental order" after voluntary dismissal and defendant's appeal); Sutton v. Sutton, 18 N.C.App. 480, 197 S.E.2d 9 (1973) (dismissal of divorce action upon separation agreement precluded motion to enforce portions of agreement). Therefore, appellants contend, the court lacked authority to enter any order in case 68CVS1176, since it was terminated by a voluntary dismissal under Rule 41(a), to which defendant consented while simultaneously taking a voluntary dismissal of his counterclaim under the same rule.

C

This argument is inapplicable to the circumstances of this case, however. Under G.S. 1A-1, Rule 41(a)(1), "... an action or any claim therein may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before the plaintiff rests his case, or; (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action." (Emphasis supplied.) The rule clearly does not require court action, other than ministerial record-keeping functions, to effect a dismissal.

G.S. 1A-1, Rule 41(d) provides that plaintiffs "... shall be taxed with the costs ...." (Emphasis supplied.) ¹ If, as plaintiffs here contend, a notice of voluntary dismissal completely terminates the case and prevents issuance of any further orders in the case, the superior and district courts would lack authority to enforce the mandate of Rule 41(d). Only where the parties chose to reinstitute the suit and the reinstituted suit was still pending would the courts then be able to order payment of costs. We do not believe the General Assembly intended to give parties this degree of control over the power of the trial courts to tax costs. Particularly in a case such as this, where the court appoints surveyors who run up large bills largely at the direction of the parties, such a rule would present obvious possibilities for abuse.

In construing Rule 41(d), we must give effect to the legislative intent, and avoid constructions which operate to defeat or impair that intent. State v. Hart, 287 N.C. 76, 213 S.E.2d 291 (1975). ² The object of this statutory rule is clearly to provide superior and district courts with authority for the efficient collection of costs in cases in which voluntary dismissals are taken. We therefore hold that the filing of notice of dismissal, while it may terminate adversary proceedings in the case, does not terminate the court's authority to enter orders apportioning and taxing costs.

D

Courts clearly have the power to correct defective orders under G.S. 1A-1, Rule 60(a):

Clerical mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors arising therein from oversight or omission may be corrected by the judge at any time on his own initiative or on the motion of any party and after such notice, if any, as the judge orders.

The uncontroverted record shows that movant filed his map before dismissal of case 68CVS1176, and that the dismissal therein was by order of the court. Therefore, the court's failure to allow and tax costs may be considered an "oversight or omission" in an "order." See G.S. 38-4, G.S. 1A-1, Rule 41(d).

It is clear that no substantive changes may be effected under Rule 60(a). See H & B Co. v. Hammond, 17 N.C.App. 534, 195 S.E.2d 58 (1973) (money judgment improperly changed to real property lien). Here, however, the substantive rights of the parties are not affected, only the procedural matter of costs. See Hockoday v. Lawrence, 156 N.C. 319, 72 S.E. 387 (1911) (costs are not subject of litigation, arising "only incidentally"); see also 20 C.J.S., Costs § 1 (1940 & Supp.1983). Therefore, the court had authority under Rule 60(a) to correct the inadvertent omission of costs from its order of 28 June 1976.

E

Plaintiffs also contend that since movant was not a party, the court could not entertain a motion from him. As movant points out, however, the record amply demonstrates that he cannot look to either party to make the motion in his behalf. Nor do we believe that a court which appoints a surveyor lacks the authority to take heed of his request for unpaid expenses in the same case in which it appointed him. The obvious policy of G.S. 38-4 is to allow the courts to avail themselves of expert help in what are often exceedingly difficult cases. It would certainly frustrate this purpose if the court-appointed surveyors themselves became exposed to the burden of litigation to recover fees.

The general rule is that only a party or his legal representative has standing to have an order set aside, and that a stranger to the action may not obtain such relief. Shaver v. Shaver, 244 N.C. 309, 93 S.E.2d 614 (1956). This rule does permit exception, however. In Bowling v. Combs, 60 N.C.App. 234, 298 S.E.2d 754, disc. rev. denied, 307 N.C. 696, 301 S.E.2d 389 (1983), this Court found no error where the trial court granted an administratrix's motion, made three months before she became a party to the action, to set aside a voluntary dismissal taken by her predecessor in office. The "technicality" that she was not a party was insufficient reason to vacate the order. Like the administratrix in Bowling, Daniels was no "stranger to the case." In his capacity as court-appointed surveyor, he was available to serve the court as its witness. G.S. 38-4(c). The court possessed authority to direct the surveyor in his duties. G.S. 38-4(b). Therefore, Daniels acted properly in bringing the matter to the court's attention; his lack of formal party status did not render his motion improper.

We conclude that (1) the provisions of G.S. 1A-1, Rule 41 and the cases interpreting it did not bar the court from issuing its order, (2) the court also possessed authority to do so under G.S. 1A-1, Rule 60(a), and (3) movant's lack of party status did not make his motion improper in light of his position as court-appointed surveyor.

II

Having determined that the matter could properly come before the Superior Court on a motion by Daniels, it remains to be determined whether a similar motion pending in case 76CVS705 precluded the court from hearing a motion in case 68CVS1176. The pendency of a prior action between the same parties concerning the same subject matter in a state court of competent jurisdiction works an abatement of the subsequent action. Conner Co. v. Quenby Corp., 272 N.C. 214, 158 S.E.2d 22 (1967). Although the motion in 76CVS705 was also before the Superior Court for Craven County, the court lacked jurisdiction to hear the motion as pertaining to that case; movant had no appointment in 76CVS705 and had never performed any work as an appointed surveyor in that case, and therefore could not invoke the court's jurisdiction therein. Therefore, the court did not err in rejecting the defense of abatement; its jurisdiction in 68CVS1176 was proper and was properly exercised.

III

Plaintiffs allege several procedural errors at the hearing as grounds for reversal of the order awarding fees.

A

The court ruled that certain cross-examination of movant regarding his other accounts receivable was inadmissible. However, the court then allowed plaintiffs to ask the questions for the record in the presence of the court. Plaintiffs contend that this constituted reversible error.

In Davis v. Insurance Co., 28 N.C.App. 44, 220 S.E.2d 149 (1975), disc. rev. denied, 289 N.C. 296, 222 S.E.2d 696 (1976), no prejudice was found where the court sitting without a jury improperly ruled certain evidence inadmissible but nevertheless let it in for the...