Couch v. Couch

MORRIS, Judge.

Although appellants in their brief raise nine questions, they properly conceded in oral argument that if the findings of the court are supported by evidence the judgment must be affirmed.

“Where an ^actual partition of lands has been ordered, whether the división made by the commissioners was fair and equitable or unequal in value is a question of fact to be determined by the Judge of the Superior Court upon an appeal from a judgment of the clerk affirming the report of the commissioners. Byrd v. Thompson, 243 N.C. 271, 90 S.E. 2d 394. The findings of the judge are conclusive and binding if there is any evidence in the record to support them. McMillan v. McMillan, 123 N.C. 577, 31 S.E. 729.” West v. West, 257 N.C. 760, 762, 127 S.E. 2d 531 (1962).

It is true that the evidence before Judge Cooper was in sharp conflict. Nevertheless, there was sufficient competent evidence to sustain his findings.

Appellants also contend that the court erred in entering an order allowing expert witness fee to the witness testifying for petitioners. We note that the court also allowed an expert witness fee to the witness who testified for respondents. Both fees were in the same amount and taxed as part of the costs. The record does not disclose whether the witnesses were under subpoena. However, counsel for all parties agree by brief that neither witness was under subpoena. Since neither expert witness testified in obedience to a subpoena, the court was without authority to allow either of them an expert fee or to tax the losing party with the amount of the fee as a part of the costs. State v. Johnson, 282 N.C. 1, 191 S.E. 2d 641 (1972). See also G.S. 7A-314 and G.S. 6-53. The order awarding expert witness fees must,- therefore, be vacated.

The judgment affirming the order of the clerk confirming the commissioners’ report is affirmed. - ' .: ,

The order awarding expert witness fees is vacated’

Judges Brock and Parker concur.