Hockoday v. . Lawrence

AlleN, J. Tbe executor insists tbat be raised an issue of fact in bis answer by alleging “tbat be is of opinion tbat tbis action is not for tbe best interest of tbe estate of James M. Hockoday, and should not be prosecuted further, but should be dismissed at tbe cost of plaintiff and tbe surety on bis prosecution bond,” and tbat as be has not waived tbe right in tbe mode prescribed by statute, be is entitled to have tbis issue passed on by a jury. It is true, as contended by tbe defendant, tbat Revisal, sec. 540, prescribes only three ways in which a trial by jury may be waived: (1) By failing to appear at tbe trial; (2) by written consent filed with tbe clerk; (3) by oral consent entered in tbe minutes; and tbat there is no such waiver on tbis record. Tbe statute was construed to exclude other modes of waiver in Hahn v. Brinson, 133 N. C., 8. If, therefore, an issue of fact is raised by tbe answer, tbe defendant is entitled to a reversal of tbe judgment. In our opinion, no issue is raised, and tbe former judgment of tbis Court should stand. Items of cost, as they arise in an action, are in no legal sense tbe subject of tbe litigation, and arise only incidentally in tbe progress of tbe cause. As was said in Martin v. Sloan, 69 N. C., 128, if parties, at tbe beginning of a suit, were to admit tbat they bad no rights involved, but wished to see which could make tbe other pay tbe costs, tbe courts would refuse to bear them. *322 - Tbe ■ different sections of Tbe Code in reference to costs clearly contemplate tbe action of tbe judge, and recognize bis power to pass upon tbe questions that may arise in determining wlio is chargeable. “Costs may be allowed or not, in tbe discretion of tbe court.” Revisal, sec. 1267. “Costs shall be taxed.” Section 1268, etc. If, however, tbe rule was otherwise, tbe defendant has not raised an issue in tbe answer’, because be has failed to allege bad faith or mismanagement on tbe part of tbe next friend, who is not in tbe ordinary sense a party to tbe action. Tate v. Mott, 96 N. C., 19; Smith v. Smith, 108 N. C., 369. In tbe last case Justice Clark uses language appropriate to this case. He says: “It is to be presumed that tbe order of tbe court appointing next friends was made regularly, after due inquiry, and in tbe interest of Larkin Smith. He is tbe party plaintiff, in fact and in law, and appeared by next friends, who merely represented him, under tbe authority and appointment of tbe court. Tbe Code, sec. 180. It is contended, however, that though not strictly parties to tbe action, tbe next friends in tbe case at bar, in resisting tbe motion to discharge them, were in fact (virtually found by tbe verdict of tbe jury) resisting tbe will of Larkin Smith, a person of full age and competent to appear for himself; that such next friends officiously and unnecessarily caused themselves to 'be appointed, and that they, and not Larkin Smith, should pay tbe costs incurred by their false clamor. There is some force in this suggestion. While ‘next friends’ may not be embraced in tbe strict letter of Tbe Code, sec. 535, they come within tbe purview of that section. It was held error to tax trustees of an express trust who are parties to an action with tbe costs, unless tbe court bad adjudged that they were guilty of ‘mismanagement or bad faith in such action.’ Smith v. King, 107 N. C., 273. A fortiori it is error to tax ‘next friends’ who are not parties, without at least a similar finding. This is not alleged here in tbe answer or found by tbe court. Indeed, tbe presumption, by virtue of their appointment by tbe court, is that *323 they acted in good faith, and they cannot be liable to costs unless there is an express finding against them of the facts requisite to tax them with costs.” The allegation in the answer, that in the opinion of the executor it is not for the best interest of the estate to further prosecute the action, falls far short of an allegation of bad faith or mismanagement. We find no error, and the petition is dismissed. Petition dismissed.