City of St. Louis v. St. Louis Gas-Light Co.

• Citation: 11 Mo.App. 237
• Parties: CITY OF ST. LOUIS, Appellant, v. ST. LOUIS GAS-LIGHT COMPANY, Respondent.
• Decision Date: 29 November 1881
• Court: Court of Appeal of Missouri (US)

11 Mo.App. 237

CITY OF ST. LOUIS, Appellant,

v.ST. LOUIS GAS-LIGHT COMPANY, Respondent.

St. Louis Court of Appeals, Missouri.

Nov. 29, 1881.

Where one is enjoined from prosecuting his business, dispossessed of his property, and a receiver appointed to take charge, at the plaintiff's instance, the compensation for the receiver's services is taxable as costs against the plaintiff, the losing party.

APPEAL from the St. Louis Circuit Court, ADAMS, J.

Affirmed.

LEVERETT BELL, for the appellant: The compensation of the receiver should be paid out of the fund.-- French v. Gifford, 31 Iowa, 428; Mabry v. Brown, 12 Heisk. 597; Cowdry v. Railroad Co., 1 Woods, 331.

GLOVER & SHEPLEY and NOBLE & ORRICK, for the respondent, cited: The State ex rel. v. Gambs, 68 Mo. 289; Rev. Stats., sects. 990, 991, 3662.

THOMPSON, J., delivered the opinion of the court.

This is an appeal from an order of the circuit court retaxing the amount which had been allowed as compensation to the receiver appointed in this case, as costs against the plaintiff. The question arises in this way: On the first day of June, 1876, the circuit court, on a final hearing of this cause, adjudged the equities in favor of the plaintiff, and, among other orders, made the following: “And the court doth further adjudge and decree that the defendant, the St. Louis Gas-Light Company, be forever enjoined and restrained from manufacturing or selling gas in the city of St. Louis or its suburbs, or prosecuting the business of a gas-light company. And the court doth further appoint Socrates Newman a receiver of all the property and estate, that is to say, all the gas-works belonging to the defendant, the St. Louis Gas-Light Company, on the first day of January, 1870, and now in its possession, and all that have since that day become a part or parcel thereof, and all works, lands, grounds, buildings, interests, rights, and utensils to it now belonging, together with all the stock belonging to the business of the defendant, the St. Louis Gas-Light Company, securities, goods, effects, books, moneys, and accounts, and all other property belonging to the said business of the said company, to take charge of all and singular thereof, and to collect and get in and receive the debts now due and outstanding belonging to the said business, and to manage and conduct the said business until the further order of the court, with liberty to employ and discharge all such servants and agents, subject to the approval of this court, as he shall deem useful and expedient in the getting in of said property, estate, debts, and effects, and to manufacture gas in said works and sell the same, and to pay such servants and agents a proper and reasonable compensation for their services out of the proceeds of the property aforesaid and of the gas manufactured, * * * and said receiver shall be entitled to retain out of the proceeds of said estate, property, debts, and effects aforesaid, a reasonable compensation, to be determined by the court, for his services and expenses,” etc. An appeal was taken to this court and the judgment was affirmed. 5 Mo. App. 484. The cause was then appealed to the supreme court, where the judgment of the circuit court was reversed, “with directions to the circuit court to make a rule or order directing and requiring the receiver appointed by the decree, to restore to the possession of the defendant the gas-works and all property, real and personal, by him received in virtue of said decree, together with the profits derived therefrom; that he report his action to the said court, upon approval of which the bill shall be dismissed.” 70 Mo. 69, 121.

Upon the coming down of the mandate of the supreme court, on March 22, 1880, the circuit court entered a judgment “that the injunction hereinbefore granted by the court be, and the same is hereby, dissolved, and the said cause be dismissed, and that said defendant recover its costs and charges herein expended, and have execution therefor.”

Afterwards, on October 12, 1880, the court made an order on the clerk to tax the costs, or show cause, on the following day, why he should not do so. On the following day, the clerk made a return to this order, taxing the costs, and omitting from the bill of costs the sum of $45,043.50 which had been allowed the receiver by previous orders of the circuit court as his compensation. On the same day the defendant filed a motion to retax the costs, which motion the court sustained, and taxed the receiver's compensation as costs against the plaintiff. The plaintiff excepted to this order, and, two days afterwards, moved the court again to retax the costs, and to strike from the bill this item of the receiver's compensation. In support of this motion, the plaintiff offered evidence tending to show that the receiver had been in great part engaged in conducting the business of manufacturing and selling gas in the city of St. Louis, and that these services had yielded a net profit of about $1,200,000, which had been paid over to the defendant by the receiver, under an order of the court. This evidence was objected to on the ground that it was irrelevant and incompetent, and also on the ground that, after the court had made the first order retaxing the costs in respect of this item of the receiver's compensation, the question stood adjudicated, and that it was not competent to revive the question by filing another motion to retax, which motion related only to the same item, and which hence amounted to nothing more than an application to the court to recall its former order. This point of practice is still insisted on. Possibly it may be well taken, but it is highly technical; and in a case involving such an amount we prefer to base our decision upon the merits.

In deciding that this item was taxable as costs, the learned judge of the circuit court (Adams, J.) gave the following opinion:--

“Concerning the question of taxing the receiver's salary as costs, the statutes of the state render unnecessary any consideration of the ancient chancery practice, and furnish to the court controlling authority. Section 3660...