Lamm v. Railey

• Decision Date: 06 January 1908
• Citation: 106 S.W. 1095,127 Mo. App. 726
• Parties: LAMM et al. v. RAILEY.
• Court: Missouri Court of Appeals

106 S.W. 1095

127 Mo. A. 726

LAMM et al. v. RAILEY.

Kansas City Court of Appeals. Missouri.

January 6, 1908.

COSTS — EJECTMENT — DISCRETION — STATUTES.

Rev. St. 1899, § 1547 [Ann. St. 1906, p. 1174], provides that in all civil actions the prevailing party shall recover costs, except where a different provision is made. Section 1550 [Ann. St. 1906, p. 1176] provides that, where a verdict is on any issue in favor of defendant, he shall have judgment for costs, in the discretion of the court. Held, that the fact that defendant in ejectment filed a general denial and a counterclaim did not bring the question of costs within the discretion of the court, but that plaintiff, on recovering judgment, was entitled to have all the costs taxed against defendant, under section 1552 [Ann. St. 1906, p. 1177], providing that in all actions not founded on contract, if plaintiff recover any damages, he shall recover his costs.

Appeal from Circuit Court, Moniteau County; Wm. H. Martin, Judge.

Action by Maggie A. Lamm and another against Samuel Railey. From a judgment taxing part of the costs against plaintiffs, they appeal. Reversed.

Edmund Burke and John Cosgrove, for appellants. R. M. Embry, for respondent.

BROADDUS, P. J.

This is an appeal by plaintiffs from a judgment of the court taxing against them certain cost incurred during the proceedings. The action was ejectment. The defendant was duly served to appear at the January term of the court for the year 1905, it being the 9th day of said month. After service of summons upon defendant, and a short time prior to the beginning of the term, his attorney notified plaintiff's attorney that he would file a motion to require the plaintiffs to give security for the costs in the case. Under rule 7 of said court all motions for security of costs were required to be filed on or before the day upon which such cause is set for trial. On the 3d day of January, 1905, the defendant caused to be issued out of the office of the clerk three subpoenas for 21 witnesses to appear in said cause in his behalf on the 10th day of said month, of whom only 10 testified in the case. On the 5th of said month subpoenas were issued in behalf of plaintiff for the attendance of 20 witnesses. On the 9th day of January defendant filed a demurrer to plaintiffs' petition, which was sustained by the court on the 11th day of January, whereupon on the said last-named day the plaintiffs, with leave of court, filed an amended petition to which on the 12th day of January defendant filed an answer and counterclaim, and on the same day the plaintiff filed a reply. At the time the court sustained the demurrer to plaintiffs' petition it was announced in open court that the answer to the proposed amended petition would be a general denial. No motion at any time was filed requiring plaintiff to give security for cost. On the trial a lease was introduced as evidence by plaintiffs, and in connection therewith three witnesses were introduced; to wit, Charles P. Spielier, S. H. Johnson, and J. Gump. The defendant introduced witnesses in support of its answer and counterclaim. The plaintiffs introduced no other witnesses than those named. The finding and judgment were in favor of plaintiffs. This judgment was in favor of plaintiffs for the cost of the case. Afterwards, on the same day, the court made an additional order in reference to the taxation of cost; viz., that the cost of all witnesses used in the trial of the cause be adjudged against the defendant, and that the cost of all witnesses not used in trial of the case be adjudged against the plaintiffs, which included all plaintiffs' witnesses except those mentioned, and also all the defendant's witnesses, and which included the fees due the clerk for issuing subpœnas for the witnesses, and also the fees of the sheriff for serving them. On the 21st of January the plaintiffs filed a motion to have the cost adjudged against them set aside, which motion was continued until the 5th day of May, 1905, and on which day, by leave of court, was withdrawn, and on the same day by leave of court refiled; whereupon defendant's attorney stated to the court that he consented that all claims for witness fees for the third day would be assumed by the defendant. The motion came up for hearing again on the 27th day of May; whereupon Mr. Emery, defendant's attorney, testified that after he had determined to file a demurrer to the petition of plaintiffs he had all of his witnesses summoned; that he retained...