Flynn v. First Nat. Safe Deposit Co.

• Decision Date: 21 December 1954
• Docket Number: 28951,Nos. 28950,s. 28950
• Citation: 273 S.W.2d 756
• Parties: William T. FLYNN (Plaintiff), Appellant, v. FIRST NATIONAL SAFE DEPOSIT COMPANY (Garnishee), Respondent. William T. FLYNN (Plaintiff), Appellant, v. FIRST NATIONAL BANK IN ST. LOUIS (Garnishee), Respondent.
• Court: Missouri Court of Appeals

Page 756

273 S.W.2d 756

William T. FLYNN (Plaintiff), Appellant, v. FIRST NATIONAL SAFE DEPOSIT COMPANY (Garnishee), Respondent.

William T. FLYNN (Plaintiff), Appellant, v. FIRST NATIONAL BANK IN ST. LOUIS (Garnishee), Respondent.

Nos. 28950, 28951.

St. Louis Court of Appeals, Missouri.

Dec. 21, 1954.

N. Murry Edwards, Ninian M. Edwards, Jr., St. Louis, for appellant.

Thomas S. McPheeters, Jr., and John L. Donnell, St. Louis, Bryan, Cave, McPheeters & McRoberts, St. Louis, of counsel, for respondent.

RUDDY, Acting Presiding Judge.

Appellant, plaintiff in the trial court, appeals from two orders of the Circuit Court made in two garnishment actions, wherein the Circuit Court in each action, on motion of the garnishee, allowed each garnishee $250 for its attorneys' fees. Separate judgments were entered in each garnishment proceeding and separate appeals have been taken in each case. Identical motions, procedures and allowances are involved in each of the garnishment proceedings and both appeals will be disposed of in this opinion.

On April 1, 1953, writs of garnishment were issued in behalf of plaintiff, William T. Flynn, and directed to the First National Safety Deposit Company and the First National Bank in St. Louis, garnishees-respondents herein. We shall refer to the parties as plaintiff and garnishees. The writs of garnishment were issued by virtue of an execution issued in favor of plaintiff and against defendant in the original proceeding. The amount alleged to be due in the execution was the sum of $43,260 together with interest theron.

On May 28, 1953, the garnishees filed their separate motions to quash the writs of garnishment. Each motion to quash the writ of garnishment contained a prayer for allowance to the garnishee for its attorneys' fees and costs, and further prayed that such allowance be taxed as costs against plaintiff. On September 18, 1953, the trial court entered its orders sustaining each motion of the garnishee to quash the writ of garnishment. These orders of the trial court failed to include any allowances to the garnishees for attorneys' fees and costs.

On September 21, 1953, plaintiff filed his notices of appeal to the Supreme Court of Missouri from the aforesaid orders of the trial court. These appeals were taken to the Supreme Court because the amount in dispute is determined by the amount for which the execution was issued, Flynn v. Janssen, Mo., 266 S.W.2d 666; Rostenberg v. Rostenberg, Mo.App., 199 S.W.2d 894, and said appeals are now pending there.

Thereafter, on September 25, 1953, each garnishee filed its motion in the trial court for an allowance, wherein it alleged that the summons in garnishment had been quashed by the order of the court pursuant to the motion of the garnishee, and further alleged, that by reason of the issuance of such summons in garnishment and of the proceedings taken in said garnishment case, it was necessary for the garnishee to employ the services of counsel in order to protect garnishee against a claim by the defendant in the original action. Each motion further alleged that the property and effects of said defendant would be wrongfully paid over by the garnishee pursuant to said summons in garnishment, unless the garnishment writ was quashed, and that said garnishee had become obligated to its counsel for reasonable attorneys' fees and gave as its opinion that the reasonable value of such services was the amount of $250. Each motion contained a prayer for an order in the amount of $250 and that such allowance be taxed as costs against plaintiff.

On October 5, 1953, a hearing on these motions was held by the trial court, at which hearing testimony concerning the extent of the services rendered by the attorneys representing the garnishees was presented. On this occasion plaintiff objected to the hearing of the motions on the ground that the trial court had no jurisdiction to hear or rule on said motions. Thereafter, on the 15th day of October, 1953, the court made and entered the following order in each garnishment proceeding: 'Garnishee's motion for allowance of attorneys' fee granted. Garnishee allowed $250.00 attorneys' fee to be taxed as costs against the plaintiff.' It is from these orders that plaintiff appeals to this court.

It is seen from the aforesaid statement of facts that the motions for allowances were filed and the orders thereon were made after the notices of appeal from the orders sustaining the garnishees' motions to quash the writs of garnishment were filed. It is the contention of plaintiff that the trial court had no jurisdiction to make and enter the orders for allowances to the garnishees after plaintiff filed his notices of appeal to the Supreme Court from the orders quashing the writs of garnishment.

We cannot answer this contention because we have concluded that we do not have jurisdiction of these appeals. No question of our jurisdiction has been raised by the parties to these appeals, but if we have no jurisdiction, it is our duty to transfer the cases to the Supreme Court and this is true, although the lack of jurisdiction has not been raised by either party.

It is our opinion that the allowances made to the garnishees are costs and the orders of the trial court taxed the allowances as costs against the plaintiff. In support of the conclusion we have reached, we first relate the rule governing the taxation of litigation costs in proceedings of the nature of the case at bar. In a long line of cases, some of which are cited below, it has been held that 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 retaxed, which must be done upon judicial investigation and determination and during the term of court at which the final judgment in the cause is rendered, for it is elementary that with the lapse of the term at which the final judgment is rendered the jurisdiction of the court over the cause ceases. Burton v. Chicago & A. R. Co., 275 Mo. 185, 204 S.W. 501; Niedringhaus v. Wm. F. Niedringhaus Investment Co., Mo.App., 54 S.W.2d 79; State ex rel. Williams v. Daues, 334 Mo. 91, 66 S.W.2d 137; Aetna Insurance Company v. O'Malley, 342 Mo. 800, 118 S.W.2d 3; ...