State ex rel. Williams v. Daues

• Decision Date: 29 November 1933
• Citation: 66 S.W.2d 137,334 Mo. 91
• 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

334 Mo. 91

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

Supreme Court of Missouri

November 29, 1933

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.

OPINION

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.

"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. 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 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 parties failed to agree upon the further sum to be paid the referee or that anything further should be paid, the plaintiffs particularly contending that the $ 6,000 already paid was ample compensation. The referee in his report and also in a separate motion filed by him at the same time, November 8, 1927, asked the court to allow him a "reasonable fee for his services;" also to allow and tax as costs $ 372.75 in favor of the stenographer who had taken and transcribed the testimony. The latter sum was one-half of the stenographer's fee; the other half already having been paid by defendants.

"'The court continued the case under advisement from term to term until its October Term, 1928, when, on November 14, 1928, it overruled plaintiffs' exceptions to the referee's report, approved the report, and entered judgment for the defendants, dismissing plaintiffs' bill, but in the judgment made no reference to the referee's motion for allowance of fees and made no allowance to the referee or the stenographer. After unavailing motions for new trial and in arrest, the plaintiffs applied for and were duly granted an appeal from that judgment; the order granting the appeal being entered on November 20, 1928, at the October Term.

"'The referee did not call up his motion for allowance of fees until after the appeal had been granted. On some day of the October Term, after the granting of the appeal to plaintiffs, he asked that his motion be heard, and it was set down for hearing on November 28, on which date it was continued to December 1, which was the last day of the term. On that day, December 1, 1928, the referee filed a motion suggesting that there was some doubt of the court's authority to pass upon the motion for allowance of fees after entry of judgment and the granting of the appeal, and, to the end that his motion for allowance might be properly considered, asked the court to set aside the judgment that had been entered and to hear his motion for allowance of fees and then to re-enter judgment. The court thereupon, on the same day, same term, entered the following order setting aside the judgment:

"'"The Court having heard and duly considered the motion of Charles B. Williams, heretofore appointed Referee in the above entitled cause, to set aside the decree, this day filed and submitted herein, doth order that said motion be and the same is hereby sustained.

"'"Thereupon, it is ordered by the Court that the decree entered herein November 14, 1928, be and the same is hereby set aside and vacated."

"'On the same day the court made an order continuing the hearing of the referee's motion for allowance of fees to December 12, 1928, a day of the succeeding term of court.

"'It will be observed that the court set aside only the judgment, from which an appeal had been taken, and the referee's motion asked only that the judgment ("decree") be set aside. The court did not set aside the order granting the appeal, nor did the referee's motion ask that that order be set aside.

"'Thus matters stood when the October Term of court ended. On December 3, 1928, the first day of the December, 1928, term, the court entered, or re-entered, of record a judgment identical with the one entered November 14, still without having heard or passed upon the referee's motion for allowance of fees. At the same term and on December 21, 1928, plaintiffs duly appealed from the judgment of December 3.

"'In the meantime, on December 12, the court heard evidence pro and con on the referee's motion for allowance of fees and on December 20 made the following order (omitting caption):

"'"The Court having heard and duly considered the motion for allowance of Referee's and stenographer's fees, heretofore filed and submitted herein, doth order that said motion be and the same is hereby sustained, and that Charles B. Williams, Esq., Referee herein, be and he is hereby allowed the sum of $ 6500.00 in addition to the sum of $ 6,000.00 previously paid to him, making a total allowance to said Referee in full of $ 12,500.00.

"'"It is further ordered by the Court that Corcoran-Harding Reporting Company be and it is hereby allowed the sum of $ 372.75, balance, for services rendered by it, and that both said allowances be taxed as costs in this cause."

"'On December 21, 1928, and at said December Term, plaintiffs appealed from the order of December 20 allowing and taxing as costs in the case the referee's and stenographer's fees. It is the said order of December 20, 1928, with which we now have to deal.'"

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