State ex rel. Park Natl. Bank v. Globe Indemnity Co., 30852.

• Decision Date: 09 August 1933
• Docket Number: No. 30852.,30852.
• Citation: 62 S.W.2d 1065
• Parties: STATE EX REL. PARK NATIONAL BANK, a Corporation, v. GLOBE INDEMNITY COMPANY, a Corporation, and RAYMOND L. COMSTOCK, Appellants.
• Court: Missouri Supreme Court

62 S.W.2d 1065

STATE EX REL. PARK NATIONAL BANK, a Corporation, v. GLOBE INDEMNITY COMPANY, a Corporation, and RAYMOND L. COMSTOCK, Appellants.

No. 30852.

Supreme Court of Missouri, Division One.

August 9, 1933.

COST TAXED AS REDUCED.

Lathrop, Crane, Reynolds, Sawyer & Mersereau, R.S. Righter and H.W. Fox for appellants.

John F. Cell and Donald N. Johnson for respondent; J.M. Johnson of counsel.

ON MOTION TO TAX COSTS.

HYDE, C.

Appellants have filed a motion denominated "Application for an order to modify the judgment by providing that the costs upon appeal shall be taxed against respondent and to tax the cost of the printing of the abstract of the record in the Kansas City Court of Appeals against respondent, relator Park National Bank." It amounts, however, to nothing more than a motion to tax the costs of printing the abstract of the record, since all other costs here were taxed in favor of appellants when judgment of this court was entered. Respondent has filed suggestions in opposition, saying: First, that the motion has not been timely made; and, second, that it was unnecessary to print in full all the oral and documentary testimony and colloquies by the court and counsel because only questions of law were presented and that, therefore, Rule 15 of the Kansas City Court of Appeals (from which court this case was transferred here) was violated.

[1] The first objection must be overruled. The opinion reversing and remanding this case with directions was filed on April 20, 1933, 332 Mo. 1089, 61 S.W. (2d) 733, during the October, 1932, term of this court. Thereafter, within ten days, also during the October, 1932, term, the respondent filed a motion for rehearing. This motion was overruled, after our May Term, 1933, had commenced on June 12, 1933, and appellants' motion to tax costs was filed, during that term, two days thereafter. Section 1253, Revised Statutes 1929, provides that an appellant shall recover his costs "if the judgment be reversed," but the statutory authority for taxing the cost of printing abstracts is Section 1028, Revised Statutes 1929, which requires the filing of printed abstracts of the records and also provides: "If the abstract filed by the appellant or plaintiff in error be sufficient and correct, a reasonable charge therefor shall be taxed against the respondent or defendant in error, if he be the losing party." [See, also, Sec. 11784, R.S. 1929.] No rule of this court fixes the time for filing a motion to tax such costs, although Rule 17 provides that objections to charges for printing "may be filed within ten days after service of notice of the amount of such charge." However, in Berberet v. Berberet, 136 Mo. 671, 38 S.W. 551, this court held that allowance for printing "requires judicial action and can only be had during the term." It approved the decision in Wilson & Co. v. Stark, 47 Mo. App. 116, holding "that such allowance can only be made at the judgment term of the court and not afterwards." Both cases said that such an allowance was similar to an allowance of a garnishee's expenses and attorney's fees which it had been held in Ladd v. Couzins, 52 Mo. 454, "called for judicial action, and this the court could only exercise before the adjournment of the term at which final judgment was rendered;" and, therefore, was different from retaxing costs under a judgment made at a prior term which "was not a revision or alteration of the judgment, but was the act of the court correcting the mere ministerial act of the clerk, who had through misapprehension of the court's order improperly taxed the ajudged costs." The Berberet case was followed in Winn v. Modern Woodmen, 146 Mo. App. 69, 123 S.W. 59; Winn v. Modern Woodmen, 146 Mo. App. 70, 123 S.W. 60. We find, however, in the Berberet case the facts were that at the October Term, 1895, the appeal "was heard and determined and a rehearing denied." The motion to tax costs was filed at the October Term, 1896, the April Term, 1896, having intervened. In the Court of Appeals' cases there was, likewise, no undetermined motion for a rehearing pending to take the case over to the term at which the motion to tax costs was filed, as in the present case. Therefore, none of these cases determine the question we have presented here.

This exact situation was before the Springfield Court of Appeals in Arndt v. Frye, 24 S.W. (2d) 696. The court cited State ex rel. New York Life Ins. Co. v. Philips, 96 Mo. 570, 10 S.W. 182, and Childs v. K.C., St. J. & C.B. Ry. Co., 117 Mo. 414, 23 S.W. 373, holding that the effect of a motion for rehearing filed at one term is to continue the case to the next term so that "the opinion did not become the decision of the court upon which a judgment (finally) could be entered until that motion was disposed of." The court also pointed out that the majority of this Court en Banc refused to overrule these two cases in State ex rel. Logan v. Ellison, 267 Mo. 321, 184 S.W. 963. The court's view, that the effect of filing a motion for rehearing is to prevent the rendition of a judgment which is final but carries the cause over to the term at which the motion is decided, is sustained by a more recent opinion of this Court en Banc in Gary Realty...