Ipock v. Miller

WiNBORNE, C. J. Appellant challenges the action of the Judge of Superior Court in merely sustaining the order of the Clerk. In this connection it is noted that when in an action for the recovery of real property, or when a claim of title to real property arises on the pleadings, or is certified by the court to have come in question at the trial, plaintiff fails to recover, the defendant shall be allowed costs therein as a matter of course. G.S. 6-19. Moreover, “When in any suit pending in the Superior Court the boundaries of lands are drawn in question, the court may, if deemed necessary, order a survey of the lands in dispute, agreeable to the boundaries and lines expressed in each party’s title, and such other survey as shall be deemed useful, which surveys shall be made by surveyors appointed by the court ... or by one surveyor, if the parties agree; . . . and for such surveys the court shall make a proper allowance to be taxed as among the costs of the suit.” G.S. 38-4, also Cannon v. Briggs, supra. This Court held in Cannon v. Briggs, supra (an action for recovery of land.and to remove a cloud from title), that where a court survey [587] of lands has been ordered and made, and the trial judge has failed to make an order allowing compensation to the surveyor, the Clerk of the court has no power to make the allowance (then Rev. Sec. 1504, now G.S. 38-4), but on appeal from the Clerk’s refusal, the Judge of the Superior Court should make it, upon motion made to that effect. And this Court in that case granted permission to renew the motion at the next term of the Superior Court of the county. In the instant case the Clerk correctly ruled that he had no authority to tax the surveyor’s fee in the bill of costs. On the appeal therefrom the Judge of Superior Court properly sustained the order of the Clerk. But the appeal being before the Judge, he should have passed upon the motion. And as in Cannon v. Briggs, supra, this cause is remanded, with permission to renew the motion at the next term of Superior Court of Craven County. Error and remanded.