Niedringhaus v. Wm. F. Niedringhaus Inv. Co.

• Decision Date: 08 November 1932
• Docket Number: No. 22446.,22446.
• Citation: Niedringhaus v. Wm. F. Niedringhaus Inv. Co., 54 S.W.2d 79 (Mo. App. 1932)
• Court: Missouri Court of Appeals
• Parties: NIEDRINGHAUS et al. v. Wm. F. NIEDRINGHAUS INV. CO. et al.<SMALL><SUP>*</SUP></SMALL>

54 S.W.2d 79

NIEDRINGHAUS et al. v. Wm. F. NIEDRINGHAUS INV. CO. et al.^*

No. 22446.

St. Louis Court of Appeals. Missouri.

November 8, 1932.

Rehearing Denied November 23, 1932.

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

"Not to be published in State Reports."

Suit by Louise Niedringhaus and the Mercantile Trust Company, trustees under the will of Oliver B. Niedringhaus, deceased, and another against the Wm. F. Niedringhaus Investment Company and others. From an order allowing fees of referee and stenographer, plaintiffs appeal. The cause was transferred from the Supreme Court .

Reversed.

Douglas W. Robert, of St. Louis, for appellants.

Gustave A. Stamm, William R. Orthwein, and Maurice L. Stewart, all of St. Louis, for respondents.

Henry H. Furth and Robert P. Elam, both of St. Louis, for referee Charles B. Williams.

HAID, P. J.

This case comes to us by transfer from the Supreme Court. 52 S.W.(2d) 395.

Prior to the transfer of the case to the court en banc, a decision was rendered by Division No. 2 of the Supreme Court, which was concurred in by all of the judges in division. That opinion stated the facts and disposed of the case in the following manner:

"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. 46 S.W.(2d) 828. 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, No. 29624 and No. 29625, 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 the 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, entered the following order setting aside the judgment:

"`The Court having heard and duly considered the motion of Charles B. Williams, heretofore appointed Referee in the above entitled cause, to set aside the decree, this day filed and submitted herein, doth order that said motion be and the same is hereby sustained.

"`Thereupon, it is ordered by the Court that the decree entered herein November 14, 1928, be and the same is hereby set aside and vacated.'

"On the same day the court made an order continuing the hearing of the referee's motion for allowance of fees to December 12, 1928, a day of the succeeding term of court.

"It will be observed that the court set aside only the judgment, from which an appeal had been taken, and the referee's motion asked only that the judgment (`decree') be set aside. The court did not set aside the order granting the appeal, nor did the referee's motion ask that that order be set aside.

"Thus matters stood when the October term of court ended. On December 3, 1928, the first day of the December, 1928, term, the court entered, or re-entered, of record a judgment identical with the one entered November 14, still without having heard or passed upon the referee's motion for allowance of fees. At the same term and on December 21, 1928, plaintiffs duly appealed from the judgment of December 3.

"In the meantime, on December 12, the court heard evidence pro and con on the referee's motion for allowance of fees and on December 20 made the following order (omitting caption):

"`The Court having heard and duly considered the motion for allowance of Referee's and stenographer's fees, heretofore filed and submitted herein, doth order that said motion be and the same is hereby sustained, and that Charles B. Williams, Esq., Referee herein, be and he is hereby allowed the sum of $6500.00 in addition to the sum of $6,000.00 previously paid to him, making a total allowance to said Referee in full of $12,500.00.

"`It is further ordered by the Court that Corcoran-Harding Reporting Company be and it is hereby allowed the sum of $372.75, balance, for services rendered by it, and that both said allowances be taxed as costs in this cause.'

"On December 21, 1928, and at said December term, plaintiffs appealed from the order of December 20 allowing and taxing as costs in the case the referee's and stenographer's fees. It is the said order of December 20, 1928, with which we now have to deal.

"I. Appellants' first contention is that the trial court had no jurisdiction or authority to set aside the October term judgment when it attempted so to do, and that said judgment, rather than the one entered on December 3, must be treated as the final judgment. They urge several grounds. On one ground urged we think this contention must be sustained, viz. that, having granted an appeal from the October term judgment, the court, while the order granting the appeal stood unrevoked, was without jurisdiction, even at the same term, to exercise further judicial functions in the case.

"We have been unable to find a case in which this court has been called upon to decide the precise question here presented. It has been before the Kansas City Court of Appeals and the St. Louis Court of Appeals and those courts have reached different conclusions.

"In Story & Clark Piano Co. v. Gibbons et al., 96 Mo. App. 218, 70 S. W. 168, an appeal had been granted, and thereafter, without revoking the order granting appeal, the circuit court made an order setting aside the judgment which had been appealed from and modified and re-entered the judgment. The Kansas City Court of Appeals held that the circuit court after granting the appeal and while that order stood unrevoked was without jurisdiction to set aside the judgment from which the appeal had been taken and that the case was pending in the appellate court on the appeal taken from that judgment, citing State ex rel. Patton v. Gates, 143 Mo. 63, 44 S. W. 739. While it is not specifically so stated in the opinion, we find from the dates given in the opinion and reference to the then applicable statutes fixing the terms of court in Jackson county, whence the appeal had come, that the order setting aside the judgment was made at the same term at which the judgment had been entered.

"The St. Louis Court of Appeals applied the same principle in Freeman v. St. Louis Quarry Co., 30 Mo. App. 362. But that court in the later case of Hydraulic Press Brick Co. v. Bambrick Bros. Constr. Co., 211 S. W. 93, without noticing the Freeman Case or Story & Clark Piano Co. v. Gibbons, supra, held that the court had jurisdiction to set aside its judgment and orders during the term at which the judgment was rendered or the orders made and that `setting aside the judgment at the same term at which it was rendered had the effect of vacating the appeal from that judgment,' and that, when the court entered up a new judgment at the same term, `the appeal from this first judgment fell,' and that an appeal would lie only from the second, which was held to be the final, judgment. The appeal from the first judgment was therefore dismissed.

"Some general language used by the same court in later decisions seems to indicate a view not in harmony with the holding in the Hydraulic Press Brick Company Case, though the precise question was not involved in the later cases. For example, in Goedecke v. Zurich, etc., Ins. Co., 7 S.W.(2d) 309, 311, the court...