Hoover v. Missouri Pac. Ry. Co.

• Decision Date: 20 March 1893
• Citation: 21 S.W. 1076,115 Mo. 77
• Parties: HOOVER et al. v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

21 S.W. 1076

115 Mo. 77

HOOVER et al. v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

March 20, 1893.

JUDGMENT FOR COSTS — INTEREST OF CLERK OF COURT — COMPROMISE.

A judgment for costs is not allowed in favor of a clerk or other officer of a court or any witnesses attending, but their fees must be collected by fee bill, and they have no interest in the judgment for costs obtained by the prevailing party, and he may forgive the judgment or compromise it for a less sum, as he may desire.

In banc. Appeal from circuit court, Jackson county; Turner A. Gill, Judge.

Action by John W. Hoover against the Missouri Pacific Railway Company. A judgment was rendered in favor of plaintiff, which was affirmed on appeal, (16 S. W. Rep. 480,) but pending a rehearing it was on stipulation reversed, and another judgment entered. This was subsequently set aside on motion of the clerk of the court and others interested in the costs. Defendant moves to vacate the order setting aside the judgment entered on stipulation, and to strike from the file the motion of the clerk. Granted.

The other facts fully appear in the following statement by GANTT, J.:

John W. Hoover, under the firm name of Hoover & Co., recovered a judgment in the circuit court of Jackson county against the Missouri Pacific Railway Company for $6,000 and costs of suit. From this judgment the railway company appealed to this court, and said judgment was affirmed. 16 S. W. Rep. 480. A motion for rehearing was filed June 2, 1891, and a rehearing granted. On the 10th of August, 1891, pending a rehearing, the following stipulation was entered into: "In the supreme court of Missouri. Oct. term, 1891. John W. Hoover and Peter Schultz, under firm name of John W. Hoover & Co., Respondent, vs. The Missouri Pacific Railway Company, Appellant. It is hereby stipulated and agreed by and between the respondent and appellant in the case that judgment therein shall be reversed, and a judgment in lieu thereof entered for the sum of six thousand six hundred dollars, ($6,600.00,) in the consideration whereof the respondent agrees to pay all costs accrued in this case save the cost of transcript and docket fee of appeal, and the respondent hereby acknowledges satisfaction of said judgment. Dated this 10th day of August, 1891. Eli Sherlock, Assignee of the Judgment, and Attorney of Record. H. S. Priest, Attorney for Appellant." This stipulation was filed in division No. 1 of this court on October 14, 1891, and judgment rendered in accordance with its terms. Afterwards, on the 22d day of December, 1891, the clerk of the circuit court of Jackson county, and J. J. Arnold, D. C. Albrittan, A. W. Leviston, and T. J. Leviston, alleged to be witnesses in the cause, filed their joint motion in division No. 1, praying this court to retax the costs that had been taxed against the appellees, and tax them against the appellant, for the following reasons: "(1) This is an action ex delicto, and the costs are not taxed in favor of the prevailing party in the action. (2) Said costs are taxed by virtue of a stipulation entered into between the attorneys for appellant and appellees, which is a fraud on the rights of the officers and witnesses of the trial court, for the following reasons: The appellant is a solvent corporation, and the appellees are entirely insolvent, and one of them is a nonresident of the state. Appellees' attorney, E. J. Sherlock, long before the hearing in this court, secured an assignment of judgment rendered in the circuit court in this cause. The judgment of the circuit court was affirmed by this court on hearing, but, a motion for a new trial being filed, a new judgment was entered up in pursuance of the stipulation of said Sherlock and appellant's attorneys for six thousand six hundred dollars against the Missouri Pacific Railway Company, and against appellees for costs. Said appellees not being the owners of the judgment or any other property, the carrying out of said stipulation has the effect of entirely defeating the collection of said costs. The judgment against said appellant for costs vested in said officers and witnesses a valid and solvent claim against appellant for their costs, which appellees cannot by stipulation render worthless, while at the same time reaping the fruits of the judgment themselves." Upon consideration of this motion, division No. 1 ordered the judgment of October 14th on the stipulation of the respondents and appellant set aside, and on suggestion ordered the cause reinstated on the docket. On April 16, 1892, the appellant duly filed its motion to vacate the order setting aside the judgment on stipulation, and to strike the motion of the clerk and witnesses from the files for the reasons: First, that neither said clerk nor any of said witnesses is a party to this suit; second, because said clerk and witnesses have no legal right to interfere with the parties to said cause in the disposition thereof; third, because the judgment on stipulation was not in favor of either said clerk or witnesses; fourth, because the action of this court in setting aside said judgment was irregular and improvident; fifth, because the judgment against respondents for costs in no wise affected the rights of the clerk and the witnesses to collect their fees from the party for whom his services were rendered, or at whose instance they were summoned. There being a division of opinion in division No. 1 as to sustaining the last-mentioned motion, it was ordered transferred to banc, and was argued orally at this term. The clerk and witnesses have filed affidavits to prove the insolvency of respondent Hoover, and the appellant has filed affidavits in which it charges that several of those claiming were never subpœnaed as witnesses or attended.

H. S. Priest and H. G. Herbel, for appellant. Robt. Adams, for respondents.

GANTT, J., (after stating the facts.)

The motion of the appellant clearly and distinctly challenges the right of the officers of courts and witnesses to interfere with the management of actions therein. The general rule that none but the parties to a suit will be allowed to interpose in its control obtains in this state as well as in other jurisdictions. State v. Clymer, 81 Mo. 122; Freem, Ex'ns, § 75; Bonnell v. Neely, 43 Ill. 288; Wallop v. Scarburgh, 5 Grat, 1; Fiske v. Lamoreaux, 48 Mo. 523. The rule is founded in the plainest principle of right. Any other practice would involve the courts and parties in endless collateral issues, and create great confusion. The right of the officers of the court and witnesses to object to the compromise of this cause is evidently based upon the theory that by the services rendered the parties they have in some way become, if not formal parties to the record, beneficially interested in the judgment rendered, and in some way have acquired a locus standi in court, to disapprove and thwart the settlements of the formal parties to the action. In this they are most clearly mistaken. The fact that they have earned fees, which have been taxed as costs, does not entitle them to interfere in the settlements or other stipulations of the parties. Their claim is based upon the fact that their services have been taxed as costs, but the judgment for these costs was not rendered in their favor. The plaintiff himself only recovered these costs by virtue of a statute. "No final costs were recoverable by either party at common law." Tidd, Pr. (3d Amer. Ed.) p. 945; Steele v. Wear, 54 Mo. 532; Thompson v. Elevator Co., 77 Mo. 520; Shed v. Railroad Co., 67 Mo. 687; Gordons v. Maupin, 10 Mo. 352; State v. Hannibal & St. J. R. Co., 78 Mo. 577. Section 2920, Rev. St. 1889, provides that "in all civil actions or proceedings of any kind the party prevailing shall recover his costs against the other party, except in those cases in which a different provision is made by law." Section 2925 provides that "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." Section 4980 provides that "the several officers hereinafter named and jurors and witnesses shall be allowed such fees for their services rendered in discharging the duties imposed upon them by law as are hereinafter provided, and the clerks of the courts of record and the presiding officers of courts of inferior jurisdiction shall strictly examine the accounts of all fees accruing during the progress of any civil suit pending in their said courts, and shall correct the same if wrong in any manner, and shall thereupon enter the amount thereof upon their fee books, and the said clerk and the other officers before...