Mueller v. National Hay & Milling Co.

• Decision Date: 21 January 1924
• Docket Number: No. 14927.,14927.
• Citation: 258 S.W. 741
• Court: Missouri Court of Appeals
• Parties: MUELLER v. NATIONAL HAY & MILLING CO.

258 S.W. 741

MUELLER v. NATIONAL HAY & MILLING CO.

No. 14927.

Kansas City Court of Appeals. Missouri.

January 21, 1924.

Rehearing Denied February 11, 1924.

Appeal from Circuit Court, Jackson County; Samuel A. Dew, Judge.

"Not to be officially published."

Action by H. Mueller against the National Hay & Milling Company. From a judgment overruling defendant's motion to retax costs, defendant appeals. Affirmed.

Ed. E. Aleshire and V. E. Phillips, both of Kansas City, for appellant.

Lathrop, Morrow, Fox & Moore, of Kansas City, for respondent.

ARNOLD, J.

This is an appeal from the action of the trial court in overruling defendant's motion to retax costs.

The facts of record are that on May 1, 1918, plaintiff, then a resident of San Antonio, Tex., instituted suit in the circuit court of Jackson county, Mo., to recover from defendant several amounts stated in three counts of the petition, based upon the same contract. The first and second counts were statements of the same cause of action, but upon different theories. On the trial plaintiff dismissed the second count and recovered judgment in the sum of $950.44 on the first, count. The finding was for defendant on the third count.

Defendant pleaded four counterclaims, one of which it dismissed, and of the others, the jury found for plaintiff on one, and for defendant on the remaining two counts. Final judgment for plaintiff in the sum of $480.19 was entered January 17, 1921, "together with the costs of this cause." There was an appeal to this court which resulted in an affirmance of the judgment. 243 S. W. 420.

The record discloses that the mandate reached the office of the circuit clerk on July 14, 1922, during the May term of said court. Prior to the trial of the case in the court below, notice to take depositions at San Antonio, Tex., was served by plaintiff upon defendant. A stipulation was entered into providing that depositions might be taken in shorthand and afterwards transcribed. Pursuant to said notice, the depositions of plaintiff and others were taken; defendant appearing by attorney who cross-examined the witnesses, including plaintiff. When completed, the depositions were transcribed as provided in the stipulation, and thereafter they were properly filed with the circuit clerk, who taxed the cost thereof, to wit, $102.50, as general costs in the case. It is of record that neither plaintiff nor any other witness whose deposition was so taken and included in the item was present at the trial, and the said depositions were accordingly read in evidence.

These depositions do not appear In defendant's abstract of the record, nor in the original bill of exceptions, and we are not advised therefore as to the amount of testimony on the part of the different witnesses included therein, nor as to the actual or relative amount of the cross-examination. We are equally in the dark, also, as to the amount of testimony given in the depositions as applied to each count of the petition and counterclaim.

On August 31, 1922, defendant filed its motion to retax costs. This motion embraced two theories: (1) Because at the trial of the cause defendant had been successful on two of his counterclaims, and on one count of plaintiff's petition, leaving only one count upon which the verdict was rendered; and (2) that under the Missouri law, where plaintiff is a nonresident, plaintiff cannot take his own deposition "which represents him in person as a witness and then charge the costs thereof" against defendant in case plaintiff is successful.

On September 30, 1922, the court sustained defendant's motion to retax costs and entered of record an order directing that plaintiff pay $50 of the costs theretofore taxed against defendant, to which ruling of the court the defendant saved its exceptions.

On October 2, 1922, plaintiff filed his motion for a new trial, which said motion was sustained on October 21, 1922, over objections of defendant, and on said date the court, of its own motion, set aside the order of September 30, 1922, sustaining defendant's motion to retax costs, and directed that plaintiff be freed from the obligation thereof. Afterwards, and on October 28, 1922, following arguments by counsel, the matter was taken under advisement by the court until November 4, 1922, on which date defendant's motion to retax costs was overruled. After defendant's motion to set aside the finding was overruled, defendant appealed.

Defendant presents five assignments of error, all of which may be properly considered together, as they are so related that a ruling on one will necessarily include all the others. The first four charges are: (1) That the court erred in overruling defendant's motion to retax costs; (2) that the finding of the court was against the law and the evidence; (3) that the court erred in sustaining plaintiff's motion for new trial, and (4) that the court erred in setting aside the former judgment taxing $50 of the costs against plaintiff. A ruling on the first of these assignments will be decisive of the other three.

The fifth assignment of error charges that the court erred in sustaining plaintiff's motion for a new trial without a further hearing in the case, and in determining the motion in plaintiff's favor without a retrial of the issues involved in the motion. The court, after sustaining plaintiff's motion for a new trial, merely set aside the judgment rendered against plaintiff wherein he was adjudged to pay $50 of the costs. This was simply carrying into effect the sustentation of plaintiff's motion for a new trial, and leaving open the question of the disposition of the motion to retax costs. There was nothing improper in this, since the hearing on the motion was duly set down for hearing, and was fully heard and argued, and judgment was then rendered, from which this appeal was taken.

In refutation of the remaining assignments of error, plaintiff insists that defendant failed to file its motion for a new trial within the statutory four days after the court overruled its motion for a new trial, and that there is therefore nothing before this court for review.

The record...