Reinauer v. Wabash R. Co.

• Decision Date: 27 February 1908
• Citation: 108 S.W. 531,210 Mo. 109
• Parties: REINAUER v. WABASH R. CO.
• Court: Missouri Supreme Court

108 S.W. 531

210 Mo. 109

REINAUER v. WABASH R. CO.

Supreme Court of Missouri.

February 27, 1908.

APPEAL—PAYMENT OF DOCKET FEES—CONDITION PRECEDENT.

Act March 20, 1907, Laws 1907, p. 121, providing that no appeal shall be allowed in any civil cause until the docket fee of $10 in the appellate court shall have been deposited with the clerk of the trial court, when considered in connection with Rev. St. 1899, § 3241 [Ann. St. 1906, p. 1843], providing that the clerks of the Supreme Court and Courts of Appeal shall be allowed a fee of $10, etc., requires the payment of the $10 costs to the clerk of the circuit court for the benefit of the clerk of the appellate court when the application for the appeal is made, but where it is not so made, and no objection is urged at the time, and the appeal is granted, the jurisdiction of the appellate court is as effective as if the payment had been made with the application for the appeal.

Woodson, J., dissenting.

In Banc. Appeal from Circuit Court, Randolph County.

Action by William Reinauer against the Wabash Railroad Company. From a judgment for plaintiff, defendant appeals. Heard on motion to affirm judgment. Overruled.

J. L. Minnis and Robertson & Robertson, for appellant. Willard P. Cave, for respondent.

GRAVES, J.

This is a motion to affirm a judgment. At the June term, 1907, of the Circuit Court of Randolph county, and on June 26, 1907, the plaintiff recovered judgment against the defendant in the sum of $6,300. On same date motion for new trial was filed and overruled, and an appeal granted to defendant to this court. Certified copy of the judgment and order granting the appeal was not filed here until December 5, 1907, which was long after the opening of our regular October term. The motion to affirm is based upon a failure of appellant to comply with rule No. 28 of this court (73 S. W. viii) and sections 812 and 813, Rev. St. 1899 [Ann. St. 1906, pp. 780, 781], and also a failure to comply with the following recent act (Laws 1907, p. 121) of the Legislature:

"Section 1. No appeal shall be allowed in any civil cause by any trial court to the Supreme Court, Kansas City Court of Appeals or St. Louis Court of Appeals until the docket fee of ten dollars in such appellate court shall have first been deposited with the clerk of the trial court.

"Sec. 2. All acts and parts of acts inconsistent with this act are hereby repealed. Approved March 20, 1907."

The docket fee was paid to the clerk of this court upon the filing of the short transcript December 5, 1907. There are affidavits and counter affidavits as to the facts which would go to make out an excuse, under the statute, for a failure to file in time. Upon these the court was satisfied that the statutory excuse for the failure to file the transcript here appeared, so the necessity of going into this matter is obviated. This court has overruled the motion to affirm, but inasmuch as such action necessarily involved the construction of the legislative act quoted above, it was thought best to give expression to our views by written opinion, and the case was assigned for an opinion. To that question alone the opinion will be directed.

The sole question presented to our mind is whether or not this new statute is of such a jurisdictional character as would invalidate an appeal, otherwise duly granted. In other words, the contention here is to the effect that, notwithstanding the fact of an appeal having been duly granted by a court of general jurisdiction, yet such order granting the appeal is void because of a failure to deposit $10, as per the requirement of the statute quoted. We are not inclined to agree with the contention of respondent. By section 3241, Rev. St. 1899 [Ann. St. 1906, p. 1843], the clerk of the Supreme Court and the clerks of the Courts of Appeal are allowed, in lieu of other fees, the sum of $10 to be paid by appellant or plaintiff in error. If appellant or plaintiff in error is successful he is entitled to recover back this fee so paid by him. This act of 1907 evidently undertakes to require the payment of these costs, lumped by the statute at the sum of $10, to be made to the circuit clerk, presumably for the use and benefit of the clerk of the appellate court entitled thereto, although there is no direction given for the payment of the sum deposited with the circuit clerk to the proper clerk of the appellate court. The statute is extremely vague upon this question. It might be presumed, though not written in the statute, that the circuit clerk would send this sum to the proper appellate clerk. The statute speaks of "the docket fee of ten dollars in such appellate court," when there is in fact no such fee allowed by law The only statute is section 3241, and in that section the $10 is not mentioned as a "docket fee," but as an allowance made in lieu of all costs in the case, and is in fact costs allowed the clerk of the appellate court, which costs are lumped at $10, covering the...