Beecham v. Evans

• Decision Date: 29 March 1909
• Citation: 117 S.W. 1190,136 Mo.App. 418
• Parties: ISAAC BEECHAM, Administrator, Plaintiff in Error, v. W. H. EVANS, Defendant in Error
• Court: Kansas Court of Appeals

117 S.W. 1190

136 Mo.App. 418

ISAAC BEECHAM, Administrator, Plaintiff in Error, v. W. H. EVANS, Defendant in Error

Court of Appeals of Missouri, Kansas City

March 29, 1909

Error to Jasper Circuit Court.--Hon. Hugh Dabbs, Judge.

AFFIRMED.

Judgment affirmed.

R. A Mooneyham and Harry Phelps for plaintiff in error.

(1) Section 1547, Revised Statutes 1899, provides that "In all civil actions or proceedings of any kind the party prevailing shall recover his costs against the other party except those cases in which a different provision is made by law." Hechct v. Heiman, 81 Mo.App. 370; R. S 1889, sec. 2925; R. S. 1899, sec. 1552; Lamb v Railley, 127 Mo.App. 729. (2) The prevailing party is entitled to recover costs unless there is a different rule prescribed by law. R. S. 1899, sec. 1547; Dupont v. McLaren, 61 Mo. 511; Vinyard v. Lynch, 86 Mo. 684; Hechct v. Heiman, 81 Mo.App. 373; Wischmeyer v. Richardson, 153 Mo. 559; Vanderberg v. Gas Co., 199 Mo. 461; Bybee v. Eyrens, 33 Mo.App. 659; R. S. 1899, secs. 1547, 1552. (3) "A judgment remains in the breast of the court during the entire term at which it is rendered, and may be set aside or vacated (or corrected) at any time during such term." Harkness v. Jarvis, 182 Mo. 231; Weed v. Weed, 25 Conn. 337; Black on Judgments (2 Ed.), sec. 163; Simmons v. Craig, 132 N.Y. 550, 33 N.E. 76.

C. H. Montgomery for defendant in error.

(1) The taxing of costs in this case was part of the judgment, and cannot be reached by motion to retax costs. It can only be reached by motion for a new trial and that within four days after judgment. Bosley v. Parle, 35 Mo.App. 236; Paul v. Co., 87 Mo.App. 647, 656; Mann v. Warner, 22 Mo.App. 577.

OPINION

BROADDUS, P. J.

The plaintiff sued in replevin to recover the possession of "300 chickens, one two-months old calf, 2 cows, 2 wagons, old, 32 hogs (extra large), one barn, 2 sets buggy harness, 4 outhouses plunder, 1 five-room house, 1 sideboard, 1 icebox, 1 dining room table, 1 cooking stove, 1 heating stove, dishes, pans, cooking utensils, 3 iron beds, 10 chairs, 1 two-seated surrey (rubber tire), 1 single buggy, 1 bay mare, 1 bay horse, barb wire, fence posts, 1 mule (iron gray), 1 black horse, 1 wagon and harness."

The Hon. Joseph D. Perkins was appointed referee to hear the testimony and make a finding as to the law and facts of the case. In due time, the referee heard the case and filed his report. According to the report, a part of the property was found to belong to the plaintiff and a part thereof to the defendant. Both parties filed exceptions to the report. On 27th day of January, 1908, it being on the nineteenth judicial day of said term, the court overruled the said exceptions and rendered judgment for plaintiff for the property shown by the referee's report to belong to him and rendered judgment for defendant for that part said report said belonged to him, and divided the costs equally between the parties.

On the 7th day of February, 1908, plaintiff filed a motion to correct the judgment and retax the costs. On the 8th day of February, 1908, it being the twenty-ninth judicial day of the term, plaintiff's motion was overruled, from which action of the court in overruling his motion the plaintiff appealed.

Without expressing any opinion as to the propriety of the action of the court in taxing a part of the costs in a suit in replevin against the plaintiff when the plaintiff recovers any part of the property replevined, we are constrained to hold that the error, if one, cannot be corrected by a motion not filed within four days after the rendition of the judgment. This is not properly a motion to retax costs, but is a motion to correct the judgment itself.

"When items of costs are specifically allowed by the trial court and adjudged against a party, such allowance and...