Buckman v. Missouri, K. & T. Ry. Co.

• Decision Date: 22 December 1906
• Citation: 98 S.W. 820,121 Mo. App. 299
• Parties: BUCKMAN v. MISSOURI, K. & T. RY. CO.
• Court: Missouri Court of Appeals

98 S.W. 820

121 Mo. App. 299

BUCKMAN v. MISSOURI, K. & T. RY. CO.

St. Louis Court of Appeals. Missouri.

December 22, 1906.

1. COSTS—COSTS ON APPEAL—REVERSAL.

Costs preparatory to and on appeal from a judgment for plaintiff rendered at the first trial, which was reversed, including costs on the motion for a new trial and in arrest of judgment, affidavit for appeal, order granting appeal, filing of appeal bond, and the cost of the transcript, should have been taxed against plaintiff.

2. CLERKS OF COURTS—FEES—MOTION COSTS —AMOUNT.

Under Rev. St. 1899, § 3242, allowing to the clerk "for filing and entering every demurrer, motion, rule or order, twenty cents," a clerk was only entitled to 20 cents for a motion to make a petition more definite and certain and for the order entered on such motion.

3. SAME—BILL OF EXCEPTIONS—FILING.

The clerk of the circuit court is only entitled to five cents for filing a bill of exceptions.

4. WITNESSES—NONRESIDENTS—MILEAGE.

Where certain nonresident witnesses were not subpœnaed within the jurisdiction of the court, they were not entitled to mileage.

5. COSTS—APPORTIONMENT.

Rev. St. 1899, § 1547, provides that in civil actions the party prevailing shall recover his costs against the other party, except in those cases in which a different provision is made by law. Held, that where in an action at law the defendant denied plaintiff's right to recover anything, and plaintiff prevailed on one count of his petition, the court had no power to apportion the whole of the costs under such section, though defendant prevailed on the other counts.

6. SAME.

Where defendant prevailed on two of the three counts contained in plaintiff's petition, defendant was entitled to such costs as accrued solely in the defense of the counts on which it prevailed.

Appeal from Circuit Court, Monroe County; David H. Eby, Judge.

Action by R. P. Buckman against the Missouri, Kansas & Texas Railway Company. From an order denying defendant's motion to retax all costs, and to disallow certain costs, it appeals. Reversed in part.

George P. B. Jackson, for appellant. John C. Pierson, for respondent.

BLAND, P. J.

In the year 1898 respondent commenced an action in the Monroe circuit court against appellant to recover the value of one mare, alleged to have been run upon and killed by the locomotive engine and cars of appellant. The petition was in three counts. The first count alleged, in substance, that the mare went upon appellant's track, and was struck and killed, at a point where it was appellant's statutory duty to erect and maintain fences along the sides of its railroad track, which it neglected to do. The second count alleged that the animal went upon the track, and was struck and killed, where appellant might have maintained fences, but neglected to do so. The third count alleged that the animal, "while on appellant's track, was carelessly and negligently struck, injured, and killed by the locomotive engine and cars of appellant, while the same were being carelessly and negligently run and operated by appellant's agents and employés." The case was twice tried. On the first trial respondent dismissed as to the first count, and the jury returned a verdict in favor of appellant on the second count, and in favor of respondent on the third count, and judgment was rendered in conformity with the verdict. The railroad company appealed from the judgment against it, and the case was reversed, and the cause remanded for new trial. After the case was remanded, respondent filed an amended petition, in which he restated his three causes of action as stated in the original petition. Appellant filed a motion to strike out the first and second counts from the amended petition, which motion the court, in October, 1900, overruled, and the case was continued for trial to December 27th following. The parties appeared on December 27th and the cause was tried, resulting in a verdict and judgment for respondent on the third count of the amended petition. An appeal was taken from this judgment, which was affirmed by this court. At the beginning of the second trial, appellant objected to the introduction of any evidence on the first and second counts. The court overruled this objection, but near the conclusion of respondent's evidence changed its mind, and announced from the bench that the order theretofore made, overruling appellant's motion to strike out the first and second counts of respondent's amended petition, would be set aside, and the motion sustained, and the two counts stricken out. The substance of the judgment entered on the second trial is that respondent recover of appellant $230 (the damages assessed by the jury) and his costs, and that respondent take nothing by the first and second counts of his petition, and appellant recover its costs therein expended....