State ex rel. O'Briant v. Keokuk & Western Railroad Company
| Decision Date | 30 June 1903 |
| Citation | 75 S.W. 636,176 Mo. 443 |
| Parties | THE STATE ex rel. O'BRIANT, Collector, Appellant, v. KEOKUK & WESTERN RAILROAD COMPANY |
| Court | Missouri Supreme Court |
Appeal from Schuyler Circuit Court. -- Hon. N. A. Franklin, Special Judge.
Affirmed.
Smoot Fogle & Eason and French for appellant.
(1) At the term the mandate was filed in the circuit court plaintiff filed a motion to have the court allow his attorneys a reasonable attorney's fee and to order the clerk to tax the same as costs in the case; and the court in which suit is brought shall, if plaintiff obtain judgment allow such attorneys a reasonable fee for bringing and conducting such suit which shall be taxed against the defendant and paid as other costs in the case. R. S. 1899, sec. 9378; Turner v. Butler, 66 Mo.App. 380; State ex rel. v. Hannibal, etc., 78 Mo. 575; State ex rel. v. Edwards, 144 Mo. 470. (2) The motion to tax costs could not be determined in the court where suit was commenced till there was final judgment in the cause. It was pending in the circuit court where it was tried for the purpose of the motion. R. S. 1899, sec. 9378. (3) The court gave judgment for taxes, interest, penalties, and costs. This means all costs. It need not specify items of costs. State ex rel. v. Edwards, supra; Turner v. Butler, supra. There should be no costs, penalties, etc., taxed against respondent if it had won the case. (4) Section 9378, Revised Statutes 1899, provides that the collector may, with the approval of the county court, appoint attorneys to aid the prosecuting attorney to bring and prosecute the suit for delinquent taxes; and, if plaintiff obtain judgment, the court in which the suit is brought shall allow such attorneys a reasonable attorney's fee which shall be taxed against the defendant and paid as other costs in the case. The collector is the only one who could, with the approval of the county court, appoint and employ such attorneys, and the signing of the petition is sufficient without pleading their authority. Butler v. Sullivan County, 108 Mo. 638; Hickory County v. Fugate, 143 Mo. 71. The attorney's fee is no part of the judgment proper; it is a part of the costs. Ryan v. State, 5 Neb. 276. (5) Evidence on the motion may be taken to show the reasonableness of the attorney's fee. Briggs v. Railroad, 111 Mo. 173.
F. T. Hughes and Higbee & Mills for respondent.
(1) It is evident that the allowance of a reasonable attorney's fee called for judicial action and this the court could only exercise before the adjournment of the term at which final judgment was rendered. It appears the motion was filed more than three years after judgment was rendered. The court had lost jurisdiction and had no power to alter or amend the judgment or to render a different judgment, and the motion should be dismissed. Berberet v. Berberet, 136 Mo. 672; Ladd v. Couzins, 52 Mo. 454; Wilson v. Stark, 47 Mo.App. 123; Mann v. Warner, 22 Mo.App. 577; Bosley v. Parle, 35 Mo.App. 232; 5 Ency. Pldg. and Prac., 120, par. 5. (2) Appellant's second point is fully answered in Ladd v. Couzins, 52 Mo. 454. If collector's attorneys were entitled to a fee in the trial court, on appeal this court could have taxed an additional fee. (3) Section 9378, Revised Statutes 1899, contemplates that the attorney's fee shall be a component part of the judgment. So ruled in suit for city taxes: State ex rel. v. Edwards, 144 Mo. 471. So in action for killing stock: Briggs v. Railroad, 111 Mo. 174. Taxing costs of printing abstract: Berberet v. Berberet, 136 Mo. 671, approving majority opinion in Wilson v. Stark, 47 Mo.App. 123. Garnishee's allowance can not be made after term. Ladd v. Couzins, 52 Mo. 454. Referee's fee not reviewable at subsequent term. Robinson v. Bobb, 139 Mo. 354; Van Frank v. Railroad, 88 Mo.App. 513, State ex rel. v. Railroad, 78 Mo. 575, is not in point. The attorney's fee there was fixed by statute at five per cent. Its taxation was the ministerial duty of the clerk, like other costs fixed by statute. Solomon v. McLennon, 81 Iowa 406; Barnes v. Smith, 104 Mass. 363. (4) After the expiration of the term at which a judgment has been rendered, the court has no power to alter or amend it in any manner of substance. Ross v. Ross, 83 Mo. 100; 17 Am. & Eng. Ency. Law (2 Ed.), 816; Jackson v. Railroad, 89 Mo. 104.
The appeal in this case is from the action of the Schuyler Circuit Court in overruling a motion filed by the plaintiff to allow the attorneys for the collector a reasonable fee for bringing and prosecuting a suit for taxes against the respondent, it being the same case as appears reported in 153 Mo. 157, as provided for by section 7746, Revised Statutes 1889, which is section 9378, Revised Statutes 1899. Said motion was filed in said court on the fifth day of June, 1900, and states, in substance, that one Henry W. O'Briant, now deceased, was collector of the revenue of Schuyler county in 1895; and, as such collector, appointed, in writing, C. C. Fogle and E. L. French, attorneys at law, as his attorneys to aid and assist the prosecuting attorney in prosecuting suits for taxes against railroad companies in said county; that the county court of said county, by an order duly entered of record at the February term, 1895, approved the said written appointment of said attorneys, all of which was according to the provisions of section 7746 of Revised Statutes of 1889 of Missouri, which provides that the court in which suit is brought shall, if plaintiff obtains judgment, allow such attorneys as shall be employed under its provisions a reasonable fee, which shall be taxed as other costs in the case; that this action was brought to recover the Liberty township (in Schuyler county) railroad interest tax amounting to $ 113.23 and the county railroad interest tax amounting to $ 804.50, for the year 1894, due upon the property of the defendant; that plaintiff obtained judgment in the circuit court on the twelfth day of November, 1896, for the full amount of taxes, for which suit was brought, amounting in the aggregate to $ 1,128.81, from which judgment an appeal was taken to the Supreme Court of Missouri, where the judgment was affirmed on the nineteenth day of December, 1899, and same is reported in 153 Mo. 157; that defendant, in resisting the payment of said taxes sought thereby to obtain a decision of the Supreme Court of this State by which the defendant would avoid the payment in the future of any taxes levied on its property to pay the railroad bonded debts of Schuyler, Scotland and Clark counties, in the State of Missouri, through which defendant's road runs, which debt in Schuyler county alone amounts to about $ 175,000, and represents a debt created by said Schuyler county to aid in the construction of defendant's railroad, which runs through the counties above named; that said attorneys have rendered valuable services in this cause; that other cases involving the taxes of other years depended upon the result in this cause; that the sum of $ 2,500 would be a reasonable fee for the services of said attorneys in the courts in this case. The motion concludes with a prayer to the court to allow said attorneys for the collector the sum of $ 2,500 for their professional services, and that the same be taxed as costs in the case.
The trial upon this motion was begun on the 12th of November, 1900. There was evidence introduced by both the relator and the defendant; but the view we take of the law that must control the questions involved, makes it unnecessary to burden this opinion with a statement of such evidence. The motion was submitted to the court upon the testimony introduced, and the court, on the 20th day of November, 1900, overruled the motion. From the action of the court, in respect to such motion, this appeal is prosecuted.
It will be observed that the original suit by the collector for the recovery of certain taxes, in which the services of the attorneys were rendered for which they seek to recover upon this motion, was tried and final judgment rendered in the circuit court of Schuyler county, on the 12th day of November, 1896.
At the very inception of this controversy, we are confronted with the vital question involved in this case, as to the right under the law to maintain this proceeding, after the lapse of so many years, and not only after the termination of the term at which the final judgment was rendered, but after the lapse of many terms of that court.
This is a proceeding, by motion, to have taxed as cost, against the defendant, a reasonable attorney's fee, the services of the attorneys having been rendered in the original tax proceeding in 1896. The statute upon which this attorney's fee is predicated provides (sec. 9378):
It will be noted that upon the rendition of judgment for the plaintiff in such tax proceeding, "the court in which suit is brought shall, if plaintiff obtain judgment, allow such attorneys a reasonable fee for bringing and conducting such suit, which shall be taxed against ...
To continue reading
Request your trial