May v. . Darden

Sjiith, C. J. The only point presented in the appeal is the adjudication of costs against the defendant for the reasons assigned: 1st. That the claim was not presented for payment before suit. 2nd. That payment was not unreasonably delayed. 3d. Nor did the defendant refuse to refer the matter in controversy as provided by the act of 1868’-69. The act referred to declares that “ no costs shall be recovered in any action against an executor, administrator or collector unless.it appears that the payment was unreasonably delayed or neglected, or that the defendant refused to *239 refer the matter in controversy, pursuant to section fifty, in which cases the court may award such costs against the defendant personally or against the estate, as may be just.” Bat. Rev., ch. 45, § 54. The purpose of the statute was obviously to urge these representatives to a prompt and early settlement of claims against the deceased, and to protect the estate, when proper diligence was used, from costs needlessly incurred by creditors .in prosecuting their claims. The meaning is too plain to admit of doubt, and it plainly meets the present case-. Less than twenty days passed after the defendant’s appointment before the action was brought. There was no controversy about the amount due as stated by the intestate himself in his last return to the probate court. The reference resulted in reducing the sum which the defendant admitted in his ansvmr and offered to pay. The reference was as profitless as the suit rvas premature in allowing the administrator no time to adjust and pay the debt. Certainly payment was not. in the language of the act “ unreasonably delayed” and unless it was, the evils should not fall on the intestate’s estate. The plaintiff insists, first, that no appeal lies from a judgment for costs only, (Kidd v. Morrison, Phil. Eq., 31; State v. R. & D. R. R., 74 N. C., 287,) and secondly, that the costs must be borne by the party against whom a recovery is made. We think neither proposition can be maintained. The cases cited are to the effect that where the essential subject matter is destroyed, lost or adjusted, an appeal will not be allowed from a jugment disposing only of the costs. This is not our case. Here the plaintiff recovers the damages demanded and the error assigned is in that part of it which (overruling the defendant’s exception) imposes the costs upon the intestate’s estate. This is certainly an order or determination involving a matter of law and “ which affects a substantial right claimed in the action.” C. C. P., § 299. *240 Nor are the citations from the various sections of the Code and Revisal regulating the taxation of costs generally, pertinent to the present case, for which a special' provision is made. We must therefore declare so much of the judgment as requires the costs to be paid from the intestate’s estate in the hands of his administrator, the defendant Darden, erroneous, and it is in this respect reversed and 'the appellant will pay the costs of his appeal to this court. Error. Judgment accordingly.