Hoskins v. Hoskins , 259 N.C. 704 ( 1963 )

131 S.E.2d 326 (1963) 259 N.C. 704

Elizabeth Slater HOSKINS
v.
Richard Thornton HOSKINS.

No. 748.

Supreme Court of North Carolina.

June 14, 1963.

Blair L. Daily, Greensboro, for plaintiff.

Long, Ridge, Harris & Walker, Graham, for defendant.

MOORE, Justice.

The inquiry on this appeal is whether the court below erred in taxing costs. The judgment directs the payment of all costs and attorneys' fees from the fund of $17,500 belonging to plaintiff and defendant in common, before division of the fund between them. Thus, the costs are apportioned between the parties, and attorneys' fees are made a part of the court costs.

The apportionment of the compensation for a referee and the court reporter employed by him is within the discretionary power given the court by G.S. § 6-21(6). Tyser v. Sears, 252 N.C. 65, 112 S.E.2d 750.

If an action is equitable in nature the taxing of the costs is within the discretion of the court, and the court may allow costs in favor of one party or the other, or require the parties to share the costs. Chandler v. Cameron, 229 N.C. 62, 47 S.E. 2d 528, 3 A.L.R.2d 571; Kluttz v. Allison, 214 N.C. 379, 199 S.E. 395; Hare v. Hare, 183 N.C. 419, 111 S.E. 620; Yates v. Yates, 170 N.C. 533, 87 S.E. 317. See G.S. § 6-20. The exercise of this discretionary authority is not reviewable. Parton v. Boyd, 104 N. C. 422, 10 S.E. 490. Nothing to the contrary appearing, it will be taken that the court gave judgment as to costs in the exercise of this discretion. Wooten v. Walters, 110 N.C. 251, 259, 14 S.E. 734, 736.

The case at bar is equitable in nature. The remedies sought are specific performance of an agreement between husband and wife to "pool" their property and assets, declaration of a resulting trust as to real estate, and an accounting. The jurisdiction of the chancery court is held to extend to disputes between husband and wife, such as a suit by a wife to secure her separate property. 19 Am.Jur., Equity, s. 175, p. 158. All of the items referred to in the judgment in the instant case as costs and expenses, except attorneys' fees, are allowable as costs, and it was within the discretion of the court to apportion them between the parties.

It was said in Wachoreia Bank & Trust Co. v. Schneider, 235 N.C. 446, 454, 70 S.E. 2d 578, 584, that "Except as otherwise provided by statute, G.S. § 6-21, attorneys' fees are not now regarded as a part of the court costs in this jurisdiction." There are one or more exceptions to this rule. Horner v. Chamber of Commerce, 236 N.C. 96, 72 S.E.2d 21; 31 N.C.L.Rev. 115. There is no statute authorizing the allowance of attorneys' fees as a part of the court costs in cases such as the one at bar, and this case does not come within the exceptions referred to.

In the types of cases enumerated in G.S. § 6-21 attorneys' fees may be included as a part of the costs in such amounts as the court in its discretion determines and allows. Defendant contends that G.S. § 6-21(2) is apposite. It includes "any action or proceeding which may require the construction of any will or trust agreement, or fix the rights and duties of parties thereunder." The present case does not involve a trust agreement, and if there is a trust it arises out of the conduct of the defendant. None of the attorneys' fees incurred by plaintiff and defendant, for representation, taking of depositions or otherwise, are allowable as a part of the costs in this action.

The cause is remanded that the judgment be modified in accordance with this opinion.

The costs in the Supreme Court will be paid one-half by plaintiff and onehalf by defendant. G.S. § 6-33.

Modified and affirmed.