Niedringhaus v. Niedringhaus Inv. Co.

• Decision Date: 07 July 1932
• Docket Number: 29626
• Citation: 52 S.W.2d 395,330 Mo. 1089
• Parties: Louise Niedringhaus and Mercantile Trust Company, Trustees under the Will of Oliver B. Niedringhaus, deceased, and Louise Niedringhaus, Appellants, v. William F. Niedringhaus Investment Company, George Hayward Niedringhaus, Executor of George W. Niedringhaus, deceased, Albert W. Niedringhaus, Lee I. Niedringhaus and Nathaniel B. Randolph
• Court: Missouri Supreme Court

52 S.W.2d 395

330 Mo. 1089

Louise Niedringhaus and Mercantile Trust Company, Trustees under the Will of Oliver B. Niedringhaus, deceased, and Louise Niedringhaus, Appellants, v. William F. Niedringhaus Investment Company, George Hayward Niedringhaus, Executor of George W. Niedringhaus, deceased, Albert W. Niedringhaus, Lee I. Niedringhaus and Nathaniel B. Randolph

No. 29626

Supreme Court of Missouri

July 7, 1932

Appeal from Circuit Court of City of St. Louis; Hon. George E Mix, Judge.

Transferred to the St. Louis Court of Appeals.

Douglas W. Robert for appellant.

(1) The court had no jurisdiction, right or authority to set aside the judgment on the motion of Charles B. Williams, Esq. He was a stranger to the record. Ewart v. Peniston, 233 Mo. 695; Shuck v. Lawton, 249 Mo. 168; Marsala v. Marsala, 288 Mo. 501; State ex rel. v. St Louis, 145 Mo. 551; Womach v. St. Joseph, 201 Mo. 467; Handlan v. Wycoff, 293 Mo. 682; Springfield v. Plumer, 89 Mo.App. 515; Green v Bogue, 158 U.S. 478; United States v. Henderlong, 102 F. 2; 6 Words and Phrases, p. 5203. (2) When the appeal was granted November 20, 1928, the circuit court parted with all jurisdiction over the case, and, therefore, it had no jurisdiction thereafter to entertain any motion, with the order allowing the appeal unrevoked. State ex rel. v. Hall, 12 S.W.2d 91; State v. Shelton, 314 Mo. 343; State ex rel. v. Gates, 143 Mo. 63; Goedecke v. Ins. Co., 7 S.W.2d 309; Case v. Smith, 215 Mo.App. 621; State ex rel. v. Goldstein, 209 Mo.App. 102; State ex rel. v. Sale, 153 Mo.App. 273; Werckman v. Taylor, 112 Mo.App. 365; Freeman v. Quarry Co., 30 Mo.App. 362; State v. Musick, 7 Mo.App. 597. (3) The order setting aside the judgment entered November 14, 1928, made December 1, 1928, was made without notice to the plaintiffs, hence was void. Sec. 1268, R. S. 1919; Dougherty v. Rubber Mfg. Co., 29 S.W.2d 126; State v. Sutton, 232 Mo. 244; Martin v. Pevely Dairy Co., 17 S.W.2d 567; State ex rel. v. Small, 212 Mo.App. 48; State v. Biesemeyer, 136 Mo.App. 668. (4) Final judgment was entered November 14, 1928. The motion to set aside and correct the judgment was filed December 1, 1928, more than four days after judgment. It was too late. Even parties to the record are required to file such motions within four days after judgment. Clancy v. Realty Co., 10 S.W.2d 914; Burton v. Railroad Co., 275 Mo. 185; State ex rel. v. Railroad Co., 176 Mo. 443; Beecham v. Evans, 136 Mo.App. 418. (5) The amount of the fee allowed the referee is excessive, exorbitant and out of all reasonable proportion.

Gustave A. Stamm, William R. Orthwein and Maurice L. Stewart for respondents.

In view of the fact that the stipulation between the parties provided that in the first instance the referee's fee was to be agreed on by the parties, and the fact that the parties agreed upon the payment of $ 6,000, and each advanced one-half of said sum, there was as to said $ 6,000 an agreement of the parties as to the referee's fee, which by virtue of the additional stipulation that the referee's fee was taxable as costs became a part of the taxable costs in this cause, which could be taxed by the clerk as a ministerial act at any term subsequent to the entry of the judgment, or at least after the mandate came down on appeal, and the taxation of said agreed sum did not involve any question for judicial determination, which had to be passed upon by the court and made a part of the judgment at the term which the judgment was rendered. Schawacker v. McLaughlin, 139 Mo. 333, 40 S.W. 935; In re McManis' Estate, 199 S.W. 423; R. S. 1929, sec. 996.

OPINION

Ragland, J.

This case was originally heard in Division Two. Following its submission an opinion was written by one of its learned Commissioners. We adopt from that opinion its statement of facts, as follows:

"This appeal grows out of the facts involved in cases numbered 29624 and 29625 on our docket, in which an opinion has been written at this term. This appeal is by plaintiffs from an order of the Circuit Court of the City of St. Louis, fixing the compensation to be allowed the referee and stenographer and ordering same taxed as costs against plaintiffs in Louise Niedringhaus et al., Appellants, v. William F. Niedringhaus Investment Company et al., Respondents, 329 Mo. 84, 46 S.W.2d 828, which see for complete statement of the facts. For the purpose of this appeal a brief statement will suffice.

"Plaintiffs instituted against defendants an action for the appointment of a receiver for defendant corporation and for other equitable relief. The court appointed Charles B. Williams as referee. At the beginning of the hearing before the referee the parties plaintiff and defendant stipulated that the statutory fees for referees should be waived and that the compensation of the referee should be fixed by the court if the parties did not agree thereon, and should be taxed as costs in the case, also that the stenographer's fees should be so allowed and taxed. During the hearing the parties paid the referee $ 6,000, each side paying half. The parties failed to agree upon the further sum to be paid the referee or that anything further should be paid, the plaintiffs particularly contending that the $ 6,000 already paid was ample compensation. The referee in his report and also in a separate motion filed by him at the same time November 8, 1927, asked the court to allow him a 'reasonable fee for his services;' also to allow and tax as costs $ 372.75 in favor of the stenographer who had taken and transcribed the testimony. The latter sum was one-half of the stenographer's fee, the other half already having been paid by defendants.

"The court continued the case under advisement from term to term until its October term, 1928, when, on November 14, 1928, it overruled plaintiffs' exceptions to the referee's report, approved the report and entered judgment for the defendants, dismissing plaintiffs' bill, but in the judgment made no reference to the referee's motion for allowance of fees, and made no allowance to the referee or the stenographer. After unavailing motions for new trial and in arrest, the plaintiffs applied for and were duly granted an appeal from that judgment, the order granting the appeal being entered on November 20, 1928, at the October term.

"The referee did not call up his motion for allowance of fees until after the appeal had been granted. On some day of the October term, after the granting of the appeal to plaintiffs he asked that his motion be heard and it was set down for hearing on November 28, on which date it was continued to December 1, which was the last day of the term. On that day, December 1, 1928, the referee filed a motion suggesting that there was some doubt of the court's authority to pass upon the motion for allowance of fees after entry of judgment and the granting of the appeal and, to that end that his motion for allowance might be properly considered, asked the court to set aside the judgment that had been entered and to hear his motion for allowance of fees and then to re-enter judgment. The court thereupon, on the same day, same term,...