Mann v. Warner

• Decision Date: 14 June 1886
• Parties: MATTHEW R. MANN, Appellant, v. WILLIAM WARNER, Respondent.
• Court: Kansas Court of Appeals

22 Mo.App. 577

MATTHEW R. MANN, Appellant, v. WILLIAM WARNER, Respondent.

Court of Appeals of Missouri, Kansas City.

June 14, 1886

APPEAL from Daviess Circuit Court, HON. C. H. S. GOODMAN, Judge.

Affirmed.

The case is stated in the opinion.

OSCAR SAYLOR and HICKLIN & YATES, for the appellant.

I. The lower court had power to re-tax costs at a subsequent term. State ex rel. Clinton County v. Hann. & St. Joe. R R. Co., 78 Mo. 575. When the record of the court shows an erroneous taxation of costs, the court, at a subsequent term, may set aside its former action and re-tax although such first taxation was adjudged and ordered by the court, and upon the lower court's refusal to re-tax, the appellate court, being possessed of the record, will reverse such action of the lower court, and order the costs re-taxed. Ashby v. Glasgow, 7 Mo 320. The cause at issue and the case of Ashby v. Glasgow, supra, are almost identical.

II. The defendant, not having complied with the provisions of section 3658, Revised Statutes, the court had no discretion in the matter, and could only adjudge costs in favor of the plaintiff, under section 990, Revised Statutes.

RUSH & ALEXANDER, for the respondent.

I. The court very properly overruled the motion to re-tax costs, as it was then too late to raise that issue. The suit had been tried and judgment rendered at the February term, and the costs taxed by the clerk, as ordered by the court. If the court committed error in adjudging the costs complained of, against the plaintiff, his remedy was in the usual way--by motion for a new trial, and appeal. The motion to re-tax has the effect of revising or altering the judgment rendered at the February term, which will not be allowed. Hill v. City of St. Louis, 20 Mo. 586; Wilson v. Boughton, 50 Mo. 17; Ashby v. Glasgow, 7 Mo. 320.

II. A judgment is the final determination of the rights of the parties in the action (sect. 3672, Rev. Stat.), and in all civil actions, or proceedings of any kind, the party prevailing shall recover his costs against the other party, except in those cases where a different provision is made by law. Sect. 990, Rev. Stat. The court adjudged the costs complained of as provided by section 3658, Revised Statutes.

III. The provisions of the statute relating to the retaxation of costs have no application and were not intended to correct errors complained of by appellant in his motion. Sects. 1010, 1011, Rev. Stat.

PHILIPS P. J.

In January, 1885, there was a suit pending in the Daviess circuit court, wherein the respondent was defendant and the appellant was plaintiff. The defendant served notice making tender to plaintiff therein of ten dollars in settlement of the claim.

This notice was served upon the attorney of record of the plaintiff. At the trial of the cause, during the next February term of said court, the plaintiff recovered judgment for the sum of five dollars only against the defendant. As the sum recovered was less than the amount so tendered by the defendant, he claimed that all the costs should be taxed against the plaintiff, which accrued subsequent to the date of the tender. The court accordingly adjudged, " that plaintiff have judgment against the defendant for the sum of five dollars, and it is further adjudged by the court that all cost accruing since Januuary 17, 1885, be taxed against plaintiff," etc. After the adjournment of that term of court the plaintiff gave notice to the defendant that, at the next term of court, he would move the court to re-tax the costs therein. The parties appeared accordingly at the term so named, and the plaintiff made his motion. The grounds of this motion were that the notice of tender served by defendant in the original action, was served on plaintiff's attorney, and not on the plaintiff personally, and, therefore, the court improperly adjudged the costs as aforesaid against the plaintiff. This motion the court denied, and from this action of the court the plaintiff prosecutes this appeal.

I. The contention of appellant is that the notice of the tender, or proposed compromise should have been served on him in person to warrant the court in awarding costs as it did. But I take it that the controlling question on this appeal is, did the circuit court, on mere motion, at a term of court subsequent to that at which the judgment was rendered, have the power to revise that judgment and re-tax the costs differently?

There can be no question, under our statute and...