
    
      John Bartee & Jesse Bartee vs. Abner M. Hall, Ex’or of Isham Rozier, deceased.
    
    Under the 13th section of the Act of 1839, allowing costs in certain cases of appeal from the Ordinary, the party succeeding in the Court of Common Pleas is entitled to costs, though there be no appeal from the decision of that Court to the Court of Appeals.
    
      Before Richardson, J., at Edgefield, Spring Term, 1850.
    This was a rule upon the clerk to show cause why he refused to tax the costs of the defendant, and sign judgment and execution against the plaintiffs for the collection thereof. It appeared that the Ordinary of the district had admitted to probate, in due form of law, the last will and testament of Isham Rozier, deceased ; and that the plaintiffs, as the next of kin of the testator, had filed their suggestion, in the Court of Common Pleas, against the defendant, as executor of said will, by way of appeal from the decree of the Ordinary, and that an issue had been made up and tried at the extra term of the Court, in January, 1851, and a verdict rendered establishing the will. The clerk returned for cause, that, as there had been no appeal in the case to the Court of Appeals, the defendant was not entitled to costs.
    Upon hearing argument, his Honor made the following order, to wit — “ Ordered, that the clerk of the Court tax the costs of said defendant, as executor of Isham Rozier, as well in the Court of Ordinary as in this Court, and that said defendant have leave to enter up judgment and issue execution against the plaintiffs for said costs.”
    From this order the plaintiffs appealed, on the ground that the cause shown by the clerk Was sufficient.
    
      M’ Gowen, for the motion, said, costs are given by positive law, and, if there he no law giving them, they are not allowed. Commented on the 13th section of the Act of 1839, and cited 3 Strob. 280; 1 Rich. 4.
    Bauskett, contra.
   Curia, per

Whitner, J.

This is an appeal from an order made on a rule against a clerk of the Court of Common Pleas, directing costs to be taxed, and granting leave to enter judgment and issue execution for the same. The question involves the proper construction of the 13th section of the Act of 1839, “Concerning the office and duties of Ordinary,” in relation to costs.

The remedy intended in the thirteenth section was, to provide the right of appeal from the Ordinary, in the cases enumerated, and to secure the recovery of costs where this right had not previously existed. In this particular case, an appeal had been taken from the Court of Ordinary to the Court of Common Pleas, being from “ a judgment relative to a last will and testament,” a class of cases provided for. The Court of Common Pleas heard and decided the issue presented, and the parties litigant acquiesced. A further appeal not having been prosecuted to the next and highest tribunal, it is insisted that costs may not be taxed, because they are only allowed to “ the party in whose favor the final judgment may be pronounced by the Court of Appeals in Law or Equity.” The order of the Judge who heard the rule not favoring this construction, hence the complaint. The construction now insisted on by the appellant, being that until “ the Court of Appeals,” in the technical sense has pronounced “final judgment” “in favor of a party,” the case has not arisen in "which costs may he taxed. A strict literal construction of the terms used, in their technical sense, would make the entire paragraph a dead letter. For in what class of cases, or solitary case, it may be asked, has “ the Court of Appeals” ever “ pronounced a final judgment,” regarding these words in their technical import? The inquiry is as to the intention of the General Assembly. Can there be two opinions on the subject ? Is it not apparent, from the general reading, without being tied down to any one particular form of expression, that in this section is provided the right of appeal from the Court of Ordinary in the instances enumerated — the mode of prosecuting the same, and, in all such appeals,” that may be prosecuted to a final hearing, to require the payment of costs by the losing party — he against whom the final decision may be made ? Litigants in other cases, on the civil side of our Courts, are subjected to this rule. What other could the Legislature have intended ? The principal costs in such cases arise at the hearing on circuit — that hearing is often satisfactory, and the decision final. To a certain extent, the Circuit Court is the Court of Appeals first designated, and, by the act of the parties, is often the last resorted to. Such a reading, it is true, is rather forced, but it, perhaps, ought to be satisfactory to those who may be rather hypocritical in raising the objection to the other clause of this section.

So far as legislative construction may be called in aid of the intention of the General Assembly, in cases of appeal from the Ordinary, on the question of costs, it may be seen, by the Act of Assembly, 1842, page 232, (giving a right of appeal In another class of cases, according to the provisions of this Act of Assembly, 1839,) which, in relation to costs, provides, with somewhat more careful phraseology, though not wholly free from criticism, “ That in all appeals under this Act (1842) the party in whose favor final judgment may be pronounced shall be entitled to tax and receive all his reasonable and proper costs, charges and expenses.”

There can he no reason for a distinction as to costs in these cases of appeals, and it was, obviously, never intended to make any.

In the opinion of this Court, the order of the Judge was properly granted, and the motion is dismissed.

O’Neall, Evans, Waedlaw, Frost and WitheRS, JJ., concurred.

Motion dismissed.  