Harbstreet v. Shipman, 19285.
| Decision Date | 05 December 1938 |
| Docket Number | No. 19285.,19285. |
| Citation | 122 S.W.2d 395 |
| Parties | WILLIAM H. HARBSTREET, RESPONDENT, v. NEWTON R. SHIPMAN, APPELLANT. |
| Court | Missouri Court of Appeals |
Appeal from Henry Circuit Court. — Hon. Charles A. Calvird, Judge.
AFFIRMED IN PART, REVERSED IN PART.
Silvers & Silvers for appellant.
(1) Costs are purely statutory and are not allowed unless specifically allowed by statute. Veidt v. M.K. & T. Ry. Co., 109 Mo. App. 102, 82 S.W. 1122; Lucas v. Brown, 127 Mo. App. 645, 106 S.W. 1089. (2) (a) The taxation of costs is a matter of record, denominated a "bill of costs" which the clerk must tax and subscribe. Rev. Stat. Mo. 1929, sec 1263; Rev. Stat. Mo. 1929, sec. 11799. (b) The costs must be legally allowable at the time. Rev. Stat. Mo. 1929, sec. 1263. (3) To be legally allowable, witness' costs must be verified by oath. Unless witnesses are sworn to their attendance and mileage their fees are not taxable; and, if taxed by the clerk, without having been sworn to, they should be retaxed and disallowed on motion. Rev. Stat. Mo. 1929, sec. 11798; Veidt v. M.K. & T. Ry. Co., 109 Mo. App. 102, 82 S.W. 1122. (4) The costs must be taxed at the term when judgment is rendered; because, (a) Costs are inherently a part of the judgment. It includes costs legally taxable. Clark v. Hill, 33 Mo. App. 116, 120; Cranor v. School District, 151 Mo. 119, 52 S.W. 232, 234; Kysor v. Growney, 114 Mo. App. 575, 90 S.W. 119. (b) Execution is required to issue forthwith upon award of costs before or upon final judgment. Rev. Stat. Mo. 1929, sec. 1269. (c) In order to be included in the amount recoverable on the judgment and included in such execution, the costs must be lawfully taxed and itemized. Rev. Stat. Mo. 1929, sec. 1263. (5) (a) Witnesses must claim their fees to be entitled to their taxation. Rev. Stat. Mo. 1929, secs. 11798, 11799. Hence witnesses must claim at the time of trial in order that all costs may be taxed and collected forthwith, as required by statutes (see authorities cited under Point 4, supra). (6) (a) The swearing of the witnesses to their fees is a part of the act of taxing them as costs. Rev. Stat. Mo. 1929, secs. 11798, 11799. (b) And the taxation is a matter of record. (See Point 2, supra). (c) Therefore the fact that they were sworn should be shown by recitation on the clerk's record. (d) The fact of the swearing of a witness should be shown by the minute or record of the clerk, and not left to memory. Makin v. Wilds, 106 La. 1, 30 So. 261 loc. cit. on re-hearing. (7) (a) A court is a tribunal, constituted of certain officials to whom is delegated the administration of justice. State ex rel. Ballew v. Woodson, 161 Mo. 444, 61 S.W. 255 loc. cit. (b) A court of record is one whose acts and proceedings are enrolled for a perpetual memorial. Jones v. Jones, 188 Mo. App. 220, 175 S.W. 230 loc. cit. (c) The acts of a court of record are known by its records alone, and cannot be shown by parol testimony. Cunio v. Franklin County, 315 Mo. 405, 285 S.W. 1008 loc. cit. (d) Oral evidence is inadmissible to show what should be shown by the record. "It is the flexible rule in this State that the records of the court must be tried by the record, and it must affirmatively appear, by the records or minutes of the court or clerk, that an order had been made at the time and by some inadvertence not properly entered." Lindsey v. Nagel, 157 Mo. App. 128, 137 S.W. 915 loc. cit.; Osagera v. Schaff, 293 Mo. 333, 240 Mo. App. 128 loc. cit. (e) Where the record is silent, there is no evidence of what was done. The court can speak only by its records. State ex rel. Gentry v. Westhues, 315 Mo. 672, 286 S.W. 399 loc. cit. (a) The office of a nunc pro tunc entry is to speak the truth of what actually happened, not to supply that which was never done. Osagera v. Schaff, 293 Mo. 333, 240 S.W. 124, 128 loc. cit. (b) And an entry nunc pro tunc must be based upon some minute in the court's docket or some paper filed in the case, not upon memory of the judge. Lindsey v. Nagel, 157 Mo. App. 158, 137 S.W. 915 loc. cit.; M.K. & T. Ry. Co. v. Holschlag, 144 Mo. 253, 45 S.W. 1101. (9) (a) The judgment includes costs legally taxable, though it does not set them out in detail. The setting them out in detail is the duty of the clerk. If he taxes costs not legally taxable, they will be stricken on motion. Clark v. Hill, 33 Mo. App. 116, 120 loc. cit. (b) To add costs not legally taxable at the time of judgment, is equivalent to amending the judgment; and this cannot be done after expiration of the judgment term. Thus costs which, to be taxable, must first be allowed or fixed by the court, cannot be taxed after the term, because to permit that would be to permit increasing, altering and amending the amount of the judgment. Mueller v. National H. & M. Co., 258 S.W. 741. (10) A court has no power to make an order taxing costs except upon motion of a party. State ex rel. Buckingham Hotel Co. v. Kimmel, 183 S.W. 651. (11) (a) Since costs are purely statutory (Point 1, supra), the statutes allowing them are strictly construed. Ex parte Nelson, 253 Mo. 627, 162 Mo. App. 167. (b) There is no statute allowing, as costs, fees for witnesses whose depositions are taken. (c) When the statutes omit to allow costs in any specific circumstances, the court cannot allow them. Ex parte Nelson, 253 Mo. 627, 162 S.W. 167.
Haysler A. Poague and Mark Wilson for respondent.
(1) The Court may, correct an error in the taxation of costs after the lapse of the judgment term and after the judgment and costs as first taxed have been paid. State ex rel. Clinton County v. The Hannibal and St. Joseph Railroad Company, 78 Mo. 575; Clark v. Hill, 33 Mo. App. 116, l.c. 120. (2) A motion to tax costs may be filed in a case after the term at which the case is disposed of. Brewing Co. v. Hogg, 141 Mo. App. 391, l.c. 398. (3) The judgment of the Court properly entered against appellant for costs thereupon merely left to the clerk the ministerial duty of setting up his record of amount of same as allowed by statute to the witnesses and errors of the clerk in attempting to follow statute may be corrected at subsequent term. Burton v. Chicago and A.R. Co., 204 S.W. 501, l.c. 506 (4); State ex rel. Clinton County v. Railroad, 78 Mo. 575. (4) Attendance of witnesses to take depositions may be compelled, and officer taking depositions shall have power to issue subpoenas for witnesses and compel their appearance in same manner and under like penalties as any court of record in this State. Revised Statutes of Missouri, 1929, section 1773. (5) Depositions are then sealed and directed to the clerk of the court where said action is pending. Revised Statutes of Missouri, 1929, section 1779. (6) Depositions taken in conformity to the provisions of this article may be read and used in evidence in cause if witnesses were present and examined in open court. Revised Statutes of Missouri, 1929, section 1780. (7) A commissioner to take depositions may be allowed compensation although no statutory provision so declares. Paxson v. McDonald, 97 Mo. App. 165. (8) A party at whose instance a deposition is taken will be held liable for the fees. Paxson v. McDonald, supra. (9) Section 11798, Revised Statutes 1929, authorizes the allowance of fees to witnesses compelled to attend under law in all hearings before commissioners, etc., or to perpetuate testimony, etc., same fees as allowed for attending court of record in like cases, therefore authorizes witness fees to witnesses compelled to attend in taking depositions. Revised Statutes 1929, section 11798. (10) Any party to a suit pending in any court may obtain the deposition of any witness to be used in such suit conditionally and the costs of taking such deposition may be taxed by the court against the losing party in the suit. Curtis v. Stix-Baer & Fuller Dry Goods Company, 162 S.W. 1049, l.c. 1051 (1, 2).
Plaintiff had a verdict and judgment against defendant for damages in the sum of $100 at the May term, 1937, of the circuit court of Henry County. The defendant timely filed motion in arrest of judgment which was overruled during the September term, 1937. During the same term the defendant filed motion to retax by striking out the fees allowed and taxed by the clerk of the court at the May term in favor of certain witnesses named in the motion on the ground that such witnesses "did not verify their claims for fees under oath."
Plaintiff at the September term filed motion to tax against defendant the fees of the witnesses named in the defendant's motion on the ground said witnesses "have been" duly sworn as required by law, and to tax against defendant the witness fees of certain persons whose depositions were taken in the cause by defendant.
The motions were consolidated and the hearing thereof begun during the September term. Prior to the close of the evidence the proceeding was adjourned. During the January term, 1938, plaintiff refiled his motion and thereupon the hearing was resumed. The defendant's motion was overruled, the plaintiff's motion was sustained. The defendant has appealed.
The witnesses whose fees are affected by defendant's motion were duly subpoenaed,...
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