
    STATE v. BUTTS.
    (Filed February 16, 1904).
    
      APPEAL — Justice of the Peace — Costs—The Code, secs. St/8, 805, 3756.
    
    An appeal from an order of the superior court remanding a case to a justice to find the facts relative to taxing a person with the costs as prosecutor is premature.
    INDICTMENT against AY. TI. and J. IT. Butts, beard by Judge Frederick Moore, at June Term, 1903, of the Superior Court of Halifax: County.
    From an order remanding the case to a justice of the peace the prosecutor appealed.
    
      Robert D. Gilmer, Attorney-General, for the State.
    
      Day & Bell, for the prosecutor.
   ClaRK, O. J.

The defendants were tried before a justice of the peace for an offense within his jurisdiction. Tie adjudged the defendants not guilty, and that the prosecution was frivolous and malicious, and that “J. O. Heptinstall pay the costs of the action.” In such cases The Code, section 3756, requires that the costs be taxed “against the complainant or prosecutor.” J. 0. Heptinstall was one of the witnesses for the prosecution, but the warrant had been issued upon the affidavit of J. AY. Heptinstall, another witness. From such order taxing him with the costs J. 0. Heptinstall appealed to the Superior Court. The Judge remanded the case to the justice of the peace with directions to serve notice upon J. AY. and J. 0. Heptinstall “to show cause why one or the other should not be marked prosecutor” and taxed with the costs, and further ordered that “said justice of the peace shall find the facts and reform his judgment in accordance therewith” and make return to the Court. From this order, and also from tbe refusal to set aside tbe order of tbe justice taxing bim with tbe costs before sucb finding returned by the justice, J. O. ITeptinstall appealed to this Court.

Tbe appeal is premature. In execution of said order tbe justice may find tbe facts in favor of said J. 0. ITeptinstall and reform tbe judgment accordingly, which would render this appeal useless. Tbe appellant should have noted bis exception, and if tbe justice should find tbe facts against bim they would be reviewable by tbe Judge. State v. Murdock, 85 N. C., 598; State v. Powell, 86 N. C., 640. Tbe Judge’s findings of fact would be binding upon us, and no appeal would lie except upon tbe ruling of. law upon sucb finding. State v. Hamilton, 106 N. C., 660; State v. Morgan., 120 N. C., 563. Here tbe Judge has made no ruling except tbe very proper one that tbe justice must find the fact whether J. O. Heptinstall was the real prosecutor. In State v. Roberts, 106 N. C., 662, where tbe appellant was taxed in tbe Superior Court with costs without a sufficient finding of facts, this Court held that this was error, but that tbe Superior Court, at a subsequent term could still investigate tbe matter, either on motion of the Solicitor, or ex mero motu even, and find tbe facts and tax tbe prosecutor with tbe costs if justified by sucb finding of facts. This was cited and approved in State v. Sanders, 111 N. C., at p. 702.

As under Tbe Code, section 895, tbe costs in such cases can in no event be taxed against tbe county (Merrimon v. Commissioners, 106 N. C., 369), and if tbe prosecution is frivolous and malicious (as here adjudged) tbe costs are taxable against tbe “prosecutor or complainant” (Tbe Code, section 3756), it is but just that tbe matter should be-re-referred to tbe justice to ascertain who was tbe prosecutor, unless tbe Judge bad chosen to find that fact himself, as be might have done. Tbe absence of J. W. Heptinstall doubtless caused him to remand to the justice to find the facts upon notice to both J. O. and J. W. Heptinstall. Though the affidavit was made by J. W. Heptinstall, it may be that J. O. Heptinstall was the real prosecutor, and the facts should be found.

The appeal is premature, for there hag been no judgment of the Superior Court affecting a substantial right and authorizing an appeal. The -Code, section 548.

Appeal Dismissed.  