Hoover v. The Missouri Pacific Railway Company

• Citation: 21 S.W. 1076,115 Mo. 77
• Parties: Hoover et al. v. The Missouri Pacific Railway Company, Appellant
• Decision Date: 20 March 1893
• Court: Missouri Supreme Court

21 S.W. 1076

115 Mo. 77

Hoover et al. v. The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri

March 20, 1893

Appeal from Jackson Circuit Court. -- Hon. T. A. Gill, Judge.

Affirmed.

H. S Priest and H. G. Herbel for appellant.

(1) A judgment for costs must be rendered in favor of one or the other party to the suit and not in favor of any officers or witnesses. The right to judgment for costs is purely a statutory one as no such right existed at common law. State ex rel. v. Railroad, 78 Mo. 577; Steel v Wear, 54 Mo. 531; Thompson v. Elevator Co., 77 Mo. 521. The remedy provided for the officers and witnesses is a fee bill and they have no right to intermeddle with the parties in their control of the case. Beedle v Mead, 81 Mo. 306. (2) Litigants can compromise suits and stipulate as to taxation of costs. Murphy v. Smith, 86 Mo. 333; Thompson v. Elevator Co., 77 Mo. 522.

Robert Adams for respondents.

Gantt, J. Barclay, J., absent.

OPINION

In Banc.

Gantt J. --

John W. Hoover under the firm name of Hoover & Company 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. A motion for rehearing was filed June 2, 1891, and a rehearing granted.

On the tenth of August, 1891, pending a rehearing, the following stipulation was entered into:

"John W. Hoover and Peter Schultz, under firm name of 'John W. Hoover & Co.,' Respondent. v. "The Missouri Pacific Railway Company, Appellant.] "In the Supreme Court of Missouri, October Term, 1891.

"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); in 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 tenth 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 number 1 of this court on October 14, 1891, and judgment rendered in accordance with its terms.

Afterwards on the twenty-second 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 number 1 praying this court to retax the costs that had been taxed against the appellee and tax them against the appellant for the following reasons: First. This is an action ex delicto and the costs are not taxed in favor of the prevailing party in the action.

Second. Said costs are taxed by virtue of a stipulation entered into between the attorneys for appellant and appellee, 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 non-resident 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 $ 6,600 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 number 1 ordered the judgment of October 14th on the stipulation of the respondent 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 cost in nowise 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 number 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 subpoenaed as witnesses or attended.

I. 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 ex rel. v. Clymer, 81 Mo. 122; Freeman on Executions, sec. 75; Bonnell v. Neely, 43 Ill. 288; Wallop's Adm'r v. Scarburgh, 5 Gratt. 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's Practice [3 Am. Ed.] p. 945; Steele v. Wear, 54 Mo. 531; Thompson v. Elevator Co., 77 Mo. 520; Shed v. Railroad, 67 Mo. 687; Gordon's v. Maupin, 10 Mo. 352; State ex rel. v. Railroad, 78 Mo. 575.

Section 2920, Revised Statutes, 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 mentioned shall, after the term of the court at or before which the services were rendered, if required by the party entitled to fees, certify a fee bill of such services and deliver the same to the sheriff or other officers of the proper county charged by law with the service of executions, who shall proceed forthwith to collect the same; and if the person or persons and their sureties for costs properly chargeable with such fees shall neglect or refuse to pay the amount thereof and costs for issuing and serving the same within thirty days after demand of said sheriff or other officer, the same shall be levied of the goods and chattels, moneys and effects of such persons or their sureties, in the same manner and with like effect as an execution," etc.

Section 2946 provides that: "In all cases where costs shall be awarded, either before or upon final judgment, execution shall be issued therefor forthwith by the clerk, unless otherwise ordered by the party in whose favor such costs shall be awarded."

It will thus be seen that the only judgment for costs authorized by these statutes is in favor of one of the parties to the suit. No provision is made by law for any such judgment in favor of any clerk or other officer of the court, or any...