Hickson Lumber Co. v. Gay Lumber Co.

Clark, C. J. At June Term, 1908, of Lenoir, Neal, J., made an order in tbis cause apportioning tbe costs and tbe compensation of tbe receiver by prorating tbe amount among all tbe claimants to tbe fund. On appeal, tbis was beld to be an error, and tbat these amounts should be taxed against tbe fund. Lumber Co. v. Lumber Co., 150 N. C., 281. The effect is to tax tbe whole sum against tbe bolder of tbe lowest Tien, and to pay tbe prior liens in full. Tbe appellant, tbe Hickson Lumber, Company, which bolds tbe lien of least priority, contends tbat as it did not appeal, tbe amount of tbe judgment against it at tbe June Term, 1908, cannot be affected. But tbe very nature of tbe exception in tbe former appeal called in question tbe correctness of prorating tbe costs and other expenses of tbis litigation, and tbe present appellant was therefore virtually tbe appellee in tbat appeal. It was not necessary, nor proper, tbat .the receiver and those entitled to tbe other costs in tbe case should have appealed. Bank v. Bank, 127 N. C., 435; Straus v. Loan Assn., 118 N. C., 563. They bad a prior lien on tbe fund, and bow tbe payment of tbe remainder of tbe fund should be apportioned was a matter between tbe litigants, and concerned them only. Tbe court below has properly adjudged tbat tbe payment of tbe costs and receiver’s fees should come out of tbe fund, i. e., be paid out of tbe sum coming to tbe lienholders of tbe lowest priority, and- tbat as there has been overpayment to them, tbe deficiency shall be collected out of tbe refunding bond given by tbe appellant. Affirmed.