Schawacker v. McLaughlin

• Decision Date: 25 May 1897
• Citation: 40 S.W. 935,139 Mo. 333
• Parties: SCHAWACKER v. McLAUGHLIN.
• Court: Missouri Supreme Court

40 S.W. 935

139 Mo. 333

SCHAWACKER v. McLAUGHLIN.

Supreme Court of Missouri, Division No. 1.

May 25, 1897.

SURETY FOR COSTS — JUDGMENT — PERSONAL NOTICE — CHANGE OF ISSUES — REFEREE'S COMPENSATION — ALLOWANCE — FAILURE TO TAX — STIPULATION — STENOGRAPHER'S FEES IN REFERRED CASE — APPORTIONMENT OF COSTS — MOTION TO RETAX.

1. Under Rev. St. 1889, § 2935, providing for the entry of judgment against a surety for costs "to the same extent as if the suit or proceeding had been instituted in his own name," no personal notice to the surety before judgment is required.

2. A change merely of the issues in the pleadings, after the surety for costs has acknowledged himself indebted for all the costs that have accrued or may accrue in the action between the parties named, does not release the surety even as to those costs accruing after the amendments.

3. Under Rev. St. 1889, § 2158, providing that referees shall receive such compensation for their services as the court may allow, the allowance must be taxed as costs, since the court is not provided by law with any official funds of its own for such expenses.

4. Under Rev. St. 1889, §§ 2100, 2117 (requiring omissions in mere matters of form, not affecting a substantial right, to be disregarded), a failure to enter, with an allowance for a referee's compensation, an order for the allowance to be taxed as costs, may be disregarded on appeal.

5. Where a cause has been referred, a stipulation of the original parties that a charge for a stenographer's services shall be taxed as costs is not binding on a surety for costs who does not join in the stipulation, since such an item is not taxable as costs except by virtue of contract.

6. The apportionment of costs in a case where there are several defenses or counterclaims is within the trial court's discretion.

7. A motion to retax costs at a term after the judgment has become final cannot be properly used to review the amount of a referee's fee allowed at an earlier term, on the ground that the prevailing party paid the greater part of the sum allowed the referee, before the report was filed; and such payment, being voluntary, was not subject to taxation as costs.

Appeal from St. Louis circuit court.

Action by Dennis J. Dempsey and another against C. Schawacker. From a judgment in favor of defendant, plaintiffs appealed, but without a stay of execution, and defendant proceeded to enforce the judgment pending the appeal. The clerk taxed the costs against plaintiffs and their sureties for costs, and, from an order overruling in part a motion to retax costs, one of the sureties, Luke McLaughlin, appeals. Reversed.

The statement of appellant, mentioned in the opinion of the First division, is substantially as follows (omitting references to the printed abstract of the record, and some commentary): "This appeal arises out of the litigation and judgment in the case of Dempsey v. Schawacker, which is in this division of this court for review (case No. 7,515), in which appellant is security for costs. Plaintiffs made a contract in October, 1886, with defendant, to build a stable for him for $8,369. When the work was nearly completed, trouble arose. They abandoned the work. Defendant finished it. Eight subcontractors instituted lien suits to enforce their demands, and recovered judgments, which defendant paid. Plaintiffs, in September, 1887, sued for the balance due them, — $2,743.12 (reasonable value, $10,855.34, less credits, $8,112.22). Defendant filed general denial at return term. Motion for costs was sustained. Defendant files motion for appointment of referee, which is sustained over plaintiffs' objections, who file bill of exceptions. Referee was appointed; cost bond in usual form given, with appellant as bondsman; hearing begun by referee. Plaintiffs and defendant stipulate for employment and payment of stenographer to report testimony, and agree that the compensation shall be taxed as costs in the case. The hearing progresses. In February, 1889, defendant files an amended answer, renewing his general denial, and pleading, in addition, the written contract, abandonment thereof by plaintiffs, also four separate counterclaims: (1) For delay in finishing building beyond stipulated time; (2) for attorney's fee in defense of lien suits; (3) for amount paid to satisfy subcontractor's lien judgments; and (4) for amount required to finish building after plaintiffs abandoned contract; and also eight separate pleas of res adjudicata, the purpose of the latter being to restrict recovery by plaintiffs for labor and material to the several amounts adjudged due their eight subcontractors in their lien suits, which defendant had paid. Plaintiffs replied, admitting the contract and abandonment, but justifying, because of defendant's unlawful interference with their workmen and method of construction, his refusal to pay installments of contract price when due, etc. Upon these enlarged issues, the case proceeds further for over four years. On November 25, 1893, the referee files his report and the report of the evidence taken by him, the latter taking 1,648 typewritten pages. He finds that defendant owes plaintiffs $8,837.97, and that plaintiffs owe defendant $12,480.21, and recommends judgment for defendant for the difference, — $3,642.34. On the same day, without notice to plaintiffs or appellant, the court allows the referee $1,270 and the stenographer $1,073.25 for their services, but does not order the allowance taxed as costs. Plaintiffs file exceptions, which are held under advisement until April 23, 1894, when the court overruled them, and adjudged that the report be confirmed, and that defendant have judgment as recommended. The court enters this order, but adds * * * `that defendant recover his costs of appellant as security for costs. Plaintiffs' motion for new trial is overruled, and they, without giving appeal bond, appeal. The clerk, at a later term, taxes the costs, which consist of clerk's, sheriff's, and witnesses' fees, and also the allowance to referee and stenographer. Execution is then issued against plaintiffs and appellant, who immediately files motion to retax, on various grounds. Appellant, at the hearing of his motion, offered and read in evidence, without objection, all the court records and proceedings. * * * He proved that, although the referee was allowed $1,270 when he filed his report, plaintiffs had paid him $175 on account of his fee long before he filed his report; and he also offered to prove that defendant had, before the filing of the report, paid the referee the balance of the amount allowed him by the court, after giving credit for the $175 paid by plaintiffs. This last evidence the court refused to hear. The point of payment of $175 was sustained; the others were overruled. Appellant excepted. His motion for rehearing was filed in due time, but was overruled. He excepted to that ruling, and appeals; hence these tears." The judgment proper is as follows (after confirming the referee's report): "And the court doth find from said report in favor of the defendant on plaintiffs' cause of action, and in favor of the defendant on his counterclaim in the sum of $3,733.39. It is therefore considered by the court that the plaintiffs take nothing by their suit in this behalf; that the defendant recover of the plaintiffs the sum aforesaid in his favor found; that the defendant recover of the plaintiffs and Luke McLaughlin and John Nolan, the sureties on the bond for costs herein, his costs and charges herein expended; and that execution issue in conformity with this judgment." The other material facts are mentioned in the opinion.

H. A. Loevy, for appellant. Wm. B. Thompson, for respondent.

BARCLAY, C. J.

This is an appeal from certain orders after judgment in the case of Dempsey v. Schawacker (1897; Mo. Sup.) 38 S. W. 954, touching various items of costs in that litigation. The appeal now before this division was taken by Mr. McLaughlin, a surety for costs for the original plaintiffs, the Dempsey brothers; and it involves the correctness of several rulings of the circuit court as to the extent of the surety's liability for costs. The principal facts on which those rulings were based are sufficiently shown by the appellant's statement before this division (the substance of which the reporter will...