Christian County v. Dye

• Decision Date: 03 November 1939
• Docket Number: No. 36126.,36126.
• Citation: 132 S.W.2d 1018
• Court: Missouri Supreme Court
• Parties: CHRISTIAN COUNTY v. DYE (BANK OF HIGHLANDVILLE, Garnishee).

132 S.W.2d 1018

CHRISTIAN COUNTY v. DYE (BANK OF HIGHLANDVILLE, Garnishee).

No. 36126.

Supreme Court of Missouri, Division No. 1.

November 3, 1939.

Appealed from Circuit Court, Stone County; Robert L. Gideon, Judge.

Proceeding by Christian County against Henry Dye, wherein the Bank of Highlandville was summoned as garnishee under an attachment. From a judgment against it for $100 attorneys' fees entered upon motion of attorneys for the garnishee, the county appeals.

Reversed.

Andrew J. Howard, Pros. Atty., Joe C. Crain, and Tom R. Moore, all of Ozark, for appellant.

Omer E. Brown and G. Purd Hays, both of Ozark, for respondent, garnishee.

HYDE, Commissioner.

This is an appeal, by Christian County, from a judgment against it for $100 for attorneys' fees, entered upon motion of attorneys for the garnishee summoned by the county as plaintiff in attachment.

The county commenced suit for $1,180 against defendant Dye on March 12, 1934. Garnishee, summoned under attachment therein, answered disclaiming any debts due defendant or property held for him. After change of venue, trial on the merits was had in the Circuit Court of Stone County, at the March, 1936, term, which resulted in a judgment for defendant entered during that term. The County's appeal to this court was not properly perfected, and, on defendant's motion, the judgment was affirmed here on February 25, 1938. At the March, 1938, term of the Stone County Circuit Court, the mandate of this court was filed, and two motions were filed for garnishee; a motion for judgment for garnishee, and a motion to assess attorneys' fees. Both motions were sustained and the judgment appealed from herein was entered for $100 attorneys' fees.

Appellant contends that the court had no authority to enter this judgment for attorneys' fees after the expiration of the original judgment term of March, 1936. Garnishee contends that this judgment was authorized by Section 1419, R.S. 1929, Mo. St.Ann. § 1419, p. 1628, citing Hoffman v. Mechanics-American National Bank, Mo.App., 287 S.W. 874, 876. The Hoffman case does not aid garnishee because there "the garnishee's motion for allowance was filed subsequent to the entry of judgment in its favor and during the same term." The contention in the Hoffman case was that allowance at that term was premature and that contention was held to be without merit. The latest expression of this Court en Banc on this question was made in Aetna Ins. Co. v. O'Malley, 342 Mo. 800, 118 S.W.2d 3, loc. cit. 11, where the decision of this court quoted with approval from and followed the ruling of Division 1 in Burton v. Chicago & Alton R. Co., 275 Mo. 185, 195, 204 S.W. 501, 504, as follows: "The rule governing the taxation of litigation costs is stated by this court as follows: `Where the costs are definite and fixed by statute, the clerk in the first instance is by law required to tax the costs of the case, which of course is purely a ministerial duty, and, when the court is requested to review the clerk's action in that regard, it is exercising a similar duty, simply correcting errors made by the clerk in trying to obey the statutes; but not so in regard to the taxation of costs, which requires judicial investigation and determination. In such a case, the clerk has no authority whatever to act, except as ordered by the court; in that case the court alone can order the costs taxed or...