State ex rel. Bauer v. Edwards

• Decision Date: 24 May 1898
• Citation: 46 S.W. 160,144 Mo. 467
• Parties: STATE ex rel. BAUER v. EDWARDS et al.
• Court: Missouri Supreme Court

46 S.W. 160

144 Mo. 467

STATE ex rel. BAUER v. EDWARDS et al.

Supreme Court of Missouri, Division No. 1.

May 24, 1898.

APPEAL — REVERSAL — PROCEDURE BELOW — RECOVERY OF BACK TAXES — COSTS — ATTORNEY'S FEES — TAXATION.

1. Where a case has been reversed on appeal, with direction to the trial court to enter judgment as directed, it has no authority to entertain any further proceedings in the cause except to enter judgment; all other matters are res adjudicata.

2. Rev. St. 1889, § 7681, provides that an attorney may be employed to conduct suits to recover back taxes and receive a sum previously agreed upon, not to exceed 10 per cent. of the amount actually collected, which sum shall be collected as other costs. Section 7683 provides that the judgment in such case shall decree that the lien of the state be enforced by sale of so much of the property as may be necessary to satisfy such judgment, interest, and costs. Held, that attorney's fees should be taxed as costs in the case, and collected with the other costs, by sale of the property.

3. Where attorney's fees are taxed separately in a judgment, instead of as a part of the costs, as provided, such error is a mere informality, for which the judgment should not be reversed.

Appeal from circuit court, Cole county; D. W. Shackleford, Judge.

Action by the state, on the relation of A. J. Bauer, against A. I. Edwards and others. From an order sustaining a motion to strike from the files an amended answer and a judgment in favor of plaintiff, defendants appeal. Affirmed.

Edwards & Edwards, for appellants. A. M. Hough, for respondent.

BRACE, P. J.

This was a suit instituted in the circuit court of Cole county for the enforcement of the statutory lien upon certain lots in Jefferson City for delinquent city taxes for the years 1889, 1890, 1891, and 1892, in which the plaintiff recovered judgment in that court for the taxes, interest, and costs sued for, and the defendants took an appeal from that judgment to this court, which appeal was heard and determined by this court at its October term, 1896 (State v. Edwards, 136 Mo. 360, 38 S. W. 73), and the judgment of the circuit court "reversed, and the cause remanded, with directions to enter judgment for enforcing the lien of the city for all taxes sued for, except those levied upon the assessment made in the year 1889." It appears, from the abstract of the record filed herein, that after the cause had been remanded to the circuit court with these directions, and at the March term, 1897, of said court, the defendants, by leave of court, filed an amended answer to the plaintiff's petition therein, the same being a denial of each and every allegation in the petition contained. Thereupon the plaintiff filed a motion to strike the amended answer from the files, for the following reasons: "(1) Because, before the filing of such amended answer, the cause had been remanded from the supreme court with specific directions to enter judgment for plaintiff enforcing the lien of the city of Jefferson for all taxes sued for except those levied upon the assessment made in the year 1889. (2) Because, the cause having been remanded by the supreme court with specific directions, no proceedings are authorized in this court, except an entry of judgment in accordance with such directions," — which motion was sustained by the court, and the defendants excepted. The plaintiff thereupon moved the court to enter judgment against the defendants for the taxes, penalties, interest, and costs sued for, except those levied upon the assessment made in the...