State ex rel. Williams v. Daues, 32726.

• Decision Date: 29 November 1933
• Docket Number: No. 32726.,32726.
• Citation: 66 S.W.2d 137
• Parties: STATE OF MISSOURI at the Relation of CHARLES B. WILLIAMS, Relator, v. CHARLES H. DAUES, WILLIAM DEE BECKER and GEORGE F. HAID, Judges of the St. Louis Court of Appeals.
• Court: Missouri Supreme Court

66 S.W.2d 137 STATE OF MISSOURI at the Relation of CHARLES B. WILLIAMS, Relator,
v.
CHARLES H. DAUES, WILLIAM DEE BECKER and GEORGE F. HAID, Judges of the St. Louis Court of Appeals. No. 32726. Supreme Court of Missouri. Court en Banc, November 29, 1933.

Certiorari.

WRIT QUASHED.

Henry H. Furth and Roberts P. Elam for relator.

(1) The opinion of Commissioner COOLEY, which was adopted by the St. Louis Court of Appeals, was completely uprooted and destroyed by the opinion of Judge RAGLAND in Niedringhaus v. Niedringhaus, 52 S.W. (2d) 395. (2) The order allowing and directing to be taxed as general costs in the case the fees of the referee and stenographer did not change, alter or amend the decree. Niedringhaus v. Niedringhaus Inv. Co., 52 S.W. (2d) 395. (a) The order allowing and directing to be taxed of general costs in the case the fees of the referee and stenographer was purely collateral to the decree. Niedringhaus v. Niedringhaus Inv. Co., 52 S.W. (2d) 395. (b) The allowances made to the referee and stenographer did not become component parts of the judgment (decree.) Niedringhaus v. Niedringhaus Inv. Co., 52 S.W. (2d) 395; Little v. St. Louis Union Trust Co., 231 Mo. 208, 132 S.W. 691, affirming 146 Mo. App. 580, 124 S.W. 600; Padgett v. Smith, 207 Mo. 235, 105 S.W. 742. (3) Although the order granting an appeal transferred jurisdiction of the case to the appellate court, matters independent of, collateral to, and distinct from, the questions involved in the appeal were not taken from the jurisdiction of the trial court. State ex rel. Allen v. Guthrie, 245 Mo. 144, 149 S.W. 305; State ex rel. Elam v. Henson. 217 S.W. 17. (4) The proceeding involving the order of allowance of the referee's fee was a matter independent of, collateral to, and distinct from the decree, and the questions involved in the appeal from the decree. Niedringhaus v. Niedringhaus Inv. Co., 52 S.W. (2d) 395. (5) The order of allowance of the referee's and stenographer's fees was but the correction an perfection of the trial court's record, and was authorized, notwithstanding the appeal. Crawford v. Chicago, R.I. & P. Ry. Co., 171 Mo. 68.

Douglas W. Robert for respondents.

(1) The opinion of the Court of Appeals, in holding that after an appeal had been allowed the circuit court was without jurisdiction to set aside the judgment while the order allowing the appeal stood unrevoked, follows the last previous rulings of this court. Niedringhaus v. Niedringhaus Inv. Co., 46 S.W. (2d) 828; State ex rel. Bank v. Hall, 321 Mo. 624; State ex rel. Patton v. Gates, 143 Mo. 63. (2) The opinion, in holding that the circuit court had no jurisdiction to tax as costs, such costs as require judicial investigation, action and determination, after final judgment and after the term at which it was entered had elapsed, follows the last previous rulings of this court. Niedringhaus v. Niedringhaus Inv. Co., 46 S.W. (2d) 828; Burton v. Railroad. 275 Mo. 185; State ex rel. O'Briant v. K. & W. Ry., 176 Mo. 443; Berberet v. Berberet, 136 Mo. 671; Jackson v. Ry. Co., 89 Mo. 104; Ladd v. Couzins, 52 Mo. 452.

TIPTON, J.

This is an original proceeding in certiorari to review the opinion of the St. Louis Court of Appeals in the case of Louise Niedringhaus and the Mercantile Trust Company, trustees under the will of Oliver Niedringhaus, deceased, and Louise Niedringhaus, appellants v. William F. Niedringhaus Investment Company, George Hayward Niedringhaus, executor of George W. Niedringhaus, deceased, Albert W. Niedringhaus, Lee I. Niedringhaus and Nathaniel Niedringhaus, respondents; which opinion is reported in 54 S.W. (2d) 79.

The facts, as stated in the Court of Appeals' opinion, are as follows:

"This case comes to us by transfer from the Supreme Court. [52 S.W. (2d) 395.]

"Prior to the transfer of the case to the court en banc, a decision was rendered by Division No. Two of the Supreme Court, which was concurred in by all of the judges in division. That opinion stated the facts and disposed of the case in the following manner:

"`This appeal grows out of the facts involved in cases numbered 29624 and 29625 on our docket, in which an opinion has been written at this term. [46 S.W. (2d) 828.] This appeal is by plaintiffs from an order of the Circuit Court of the City of St. Louis, fixing the compensation to be allowed the referee and stenographer and ordering same taxed as costs against plaintiffs in Louise Niedringhaus et al., Appellants, v. William F. Niedringhaus Investment Company et al., Respondents, No. 29624 and No. 29625, which see for complete statement of the facts. For the purpose of this appeal, a brief statement will suffice.

"`Plaintiffs instituted against defendants an action for the appointment of a receiver for defendant corporation and for other

66 S.W.2d 138

equitable relief. The court appointed Charles B. Williams as referee. At the beginning of the hearing before the referee the parties plaintiff and defendant stipulated that the statutory fees for referees should be waived, and that the compensation of the referee should be fixed by the court if the parties did not agree thereon, and should be taxed as costs in the case, also that the stenographer's fees should be so allowed and taxed. During the hearing, the parties paid the referee $6,000; each side paying half. The...