Thornton v. McLendon

Lumbkin, Justice. An ajiplioation for -a homestead and exemption was presented to the ordinary by one McLendon. Mrs. Thornton and -others, they being hi-s creditors, filed caveats setting forth tbeir objections to the allowance of this -application. The caveats were overruled, and the caveators thereupon entered an appeal to the superior court. Before the case was tried in that court, the applicant for the homestead settled with Mrs. Thornton, so that she really had no further591 interest in tbe case; but no order was taken striking her name as a party thereto, or dismissing the caveat which, she had filed. It is therefore quite certain that she remained a party to the appeal case, notwithstanding the fact that her claim had been settled by McLendon. The case was disposed of in the superior court by a judgment for costs in favor of the applicant, and against all of the objecting creditors, including Mrs. Thornton. This judgment was rendered under an agreement between Mc-Lendon and the caveators other than Mrs. Thornton. She was not a party to this agreement, but it does not appear that the judgment was in any respect different from what it ought to have been in the absence of any agreement at all. So far as we can gather from the record before us, Mc-Lendon was entitled to the allowance of his homestead; and this being so, 'the appellants were all liable for costs. If, when Mrs. Thornton had her settlement with McLendon, she had, by a proper order, withdrawn from the case, it may be that she would have been liable only as to such costs as had accrued up to that time; but as she actually remained a party until the final disposition of the appeal, and the judgment thereon was apparently right, irrespective of any question of consent, we are at a loss to discover' any reason why she should not be liable for all the costs, along with the other appellants. After an execution for the costs had been issued against all of them, Mrs. Thornton filed a motion to retax the costs. This motion was based solely upon the facts above recited, its object being to have the execution so modified as to relieve the movant from all liability except as to the fees of' two named witneses. It was, of -course, within the power' of the trial judge to order a retaxing of the costs; but he certainly was not bound to do so unless for some good and sufficient reason. As none was urged -or shown in the present case, we cannot say there was any error in denying the-'-, motion. Jndgmmi affirmed.