State ex rel. Clinton Cnty. v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 31 October 1883
• Citation: 78 Mo. 575
• Parties: THE STATE ex rel. CLINTON COUNTY v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

78 Mo. 575

THE STATE ex rel. CLINTON COUNTY

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Chariton Circuit Court.--HON. GEO. W. DUNN, Judge.

AFFIRMED.

Geo. W. Easley for appellant.

J. M. Lowe and R. Hughes for respondent.

MARTIN, C.

The controversy in this case is about costs, and rises from a motion to re-tax costs in favor of the plaintiff's attorney, which was filed on the 26th day of April, 1879. It appears from the record that at the December term, 1876, of the Clinton circuit court, the plaintiff in a suit bearing the name and style of the parties to this record, recovered judgment against the defendant in the sum of $6,390, for back taxes due from defendant for the years 1873 and 1874, and for costs of suit. By the session acts of 1875 it is provided that the “prosecuting attorney instituting and conducting such suit for the taxes, shall, if the plaintiffs recover judgment, receive as his full compensation for his services therein a sum equivalent to five per cent of the sum recovered of said defendant, which said attorney's fees are to be taxed as costs in said cause and recovered and collected as other costs.” Sess. Acts 1875, p. 127. The suit in which the judgment was recovered was instituted at the April term, 1875, by J. M. Lowe, Esq., as prosecuting attorney, and was concluded by Roland Hughes, who had succeeded him in such office. In the taxation of costs the clerk failed to include the sum of $319.50, which under the law should have been taxed in favor of the attorneys of plaintiff. On the 16th day of June, 1877, the defendant satisfied the judgment in the case and all the costs at that time taxed by the clerk, and received an acquittance or discharge to that effect. Afterward, in April, 1879, the attorneys of plaintiff filed in the case this motion to have the costs re-taxed so as to include the fees given them by the statute. A summons was attached to this motion as if it was a petition and the same was served on the defendant, who without objection appeared in court, made answer in writing to the merits of the motion and joined with the plaintiff in an agreed statement of facts upon which the court acted as in an independent proceeding. On the law and agreed case the court, after waiver of jury, rendered a formal finding of the facts as herein recited, and thereupon entered an order on the clerk to re-tax the costs in the case by including the sum of $319.50 in favor of said attorneys, and awarded execution therefor. The defendant took exception to this action of the court claiming that it had no jurisdiction to enter the order so long after the judgment had been rendered, and after it had been satisfied.

The only question for us to decide is whether the order of re-taxation could be made at the time it...