Graden v. Patrick
| Decision Date | 02 June 1942 |
| Docket Number | No. 25992.,25992. |
| Citation | 162 S.W.2d 287 |
| Parties | GRADEN v. PATRICK et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Cape Girardeau County; J. C. McDowell, Judge.
"Not to be reported in State Reports."
Suit by Emil Graden against Nelson Patrick, a minor, by Frank Kelly, guardian ad litem, and another, for property damage and personal injuries arising out of a collision between plaintiff's team and an automobile. From a judgment taxing costs against the named defendant, the latter appeals and plaintiff moves to dismiss the appeal.
Motion to dismiss overruled and judgment affirmed.
Judge Frank Kelly, of Cape Girardeau, for appellant.
J. Grant Frye, of Cape Girardeau, for respondent.
This appeal is from a judgment of the trial court taxing costs against appellant, in a suit wherein plaintiff recovered a judgment for damage to property against defendant, Nelson Patrick, appellant herein.
The plaintiff, Emil Graden, brought suit against Vernon Patrick, an adult, and Nelson Patrick, a minor, for damages to property and for personal injuries, arising out of a collision between plaintiff's team and an automobile owned by Vernon Patrick and driven by the minor, Nelson Patrick. The suit was brought to the April Term, 1941, of the Circuit Court and on the first day of the term, Vernon Patrick filed his answer and counterclaim, but Nelson Patrick filed no answer on the return day. On May 12, 1941, the case came on for trial, a jury was impaneled and sworn, the trial progressed, and at the close of plaintiff's case the court gave and read to the jury an instruction in the nature of a demurrer to the evidence requested by defendant, Vernon Patrick. At that time, defendant Nelson Patrick was still in default, was not represented by counsel, and no guardian ad litem had been appointed for him. After Vernon Patrick was discharged from the case, it was suggested to the Court that defendant Nelson Patrick was a minor and that no guardian ad litem had been appointed for him, whereupon the Court appointed Judge Frank Kelly, who had appeared in the case as attorney for defendant Vernon Patrick, as guardian ad litem for defendant Nelson Patrick. Judge Kelly accepted the appointment, filed an answer on behalf of Nelson Patrick, and stated that he was as ready then to defend the case as he ever would be, whereupon the Court ordered that the cause proceed on the petition as against defendant Nelson Patrick, and on the counterclaim of Vernon Patrick as against plaintiff.
At this point Mr. Frye, attorney for plaintiff, inquired of Judge Kelly if he desired that plaintiff reintroduce all the testimony theretofore adduced. Judge Kelly replied that he would not require that as the jury had heard the evidence.
Defendant Nelson Patrick thereupon put on his case, and plaintiff offered evidence in rebuttal. At the close of the case, the cause was submitted to the jury, who returned a verdict for Vernon Patrick on the plaintiff's cause of action, for plaintiff on the counterclaim of Vernon Patrick, and for plaintiff and against defendant Nelson Patrick for $125 on the plaintiff's petition.
Subsequent to the trial, Judge Kelly, as guardian ad litem for defendant Nelson Patrick, filed a motion in the case requesting the court to tax all costs against the plaintiff, for the following reasons: first, said defendant did not cause or make any of the cost in the case, but same was made by plaintiff and defendant Vernon Patrick; and, second, said minor defendant had no legal connection with the case until the appointment of Judge Kelly as guardian ad litem in the midst of the trial, at which time all the cost had been made, and for that reason the cost could not be legally taxed against him.
The Court duly considered this motion and overruled the same, and thereafter entered the following order modifying the judgment as to the costs in the case: "At this time the court taxes the cost of subpoenaing and service thereof on witness Clark, subpoenaed by Vernon Patrick on behalf of his counterclaim, against Vernon Patrick; and also the cost of original process for Vernon Patrick against Emil Graden (plaintiff); and orders that all other costs follow the case and be taxed against Nelson Patrick, as follows: Circuit Clerk's cost, $26.25; Sheriff's cost, $14.10; witness cost $18.55, total cost $58.85."
From the judgment as modified by this order defendant Nelson Patrick prosecuted this appeal.
The cause of action sued upon by plaintiff herein was an action ex delicto, and as to costs was governed by Section 1411, R.S.Mo.1939, Mo.R.S.A. § 1411, which reads: "In all actions not founded on contract, the damages claimed in the petition shall determine the jurisdiction of the court, and if the plaintiff recover any damages he shall recover his costs."
Under the mandate of this statute, there can be no question but that when the verdict of the jury was returned against appellant herein, judgment for costs against him properly followed as a...
To continue reading
Request your trial
- Fernan v. Prudential Ins. Co. of America
-
Stewart v. Ferer
...Missouri Pacific Railway Co. v McCarty, 97 Mo. 214, 11 S.W. 52; Galbraith v. Pennington, 184 Mo.App. 618, 170 S.W. 668; Graden v. Patrick, Mo.App., 162 S.W.2d 287; Hamilton v. Moore, 335 Pa. 433, 6 A. 2d 787; Webster v. Page, 54 Iowa 461, 6 N.W. 716; Johnston v. Calvin, 232 Iowa 531, 5 N.W.......
-
Anderson v. Curls
...review. State ex rel. State Highway Commission of Missouri v. Graeler, Mo.App., 303 S.W.2d 944; Supreme Court Rule 3.23, 42 V.A.M.S. Cf. Graden v. Patrick, Mo.App., 162 S.W.2d 287. Since the contention that the trial judge erred in assessing the costs of the case against appellants was not ......
-
Weiler v. Weiler
... ... Graden ... v. Patrick, Mo.App., 162 S.W.2d 287, and Morgan v. Morgan, Mo.App., 289 S.W.2d 151 ... The appellant asserts that the trial ... ...