State v. Oliver

• Citation: 116 Mo. 188,22 S.W. 637
• Parties: STATE ex rel. HOWSER et al. v. OLIVER, Judge.
• Decision Date: 22 May 1893
• Court: Missouri Supreme Court

22 S.W. 637

116 Mo. 188

STATE ex rel. HOWSER et al. v. OLIVER, Judge.

Supreme Court of Missouri, Division No. 1.

May 22, 1893.

COSTS IN CRIMINAL CASES — ALLOWANCE — MANDAMUS TO JUDGE.

1. Rev. St. 1889, §§ 4411, 4412, provide that, if the state shall be liable for any costs in a criminal proceeding, the clerk of the court shall deliver to the prosecuting attorney a fee bill, who, after examining and correcting the same, shall report it to the judge, and, if it appears to be correct, the judge and prosecuting attorney shall certify to the state auditor the amount due by the state. Section 4420 provides that the judge and prosecuting attorney shall in no case tax more than the costs of three witnesses to establish any one fact, but the costs of witnesses unnecessarily summoned and not examined shall, "in the discretion

of the court," be taxed against the party summoning them. Held, that allowance of the fees of three witnesses to the same fact was within the discretion of the court, and mandamus would not lie to compel him to allow additional fees.

2. The judge of the criminal court of a county, in certifying such costs, is subject to the control of the circuit court of the county, whether he be acting in a ministerial capacity, as a member of an auditing board, or judicially, as judge of an inferior court of record.

Appeal from St Louis court of appeals.

Proceeding by mandamus on the relation of T. J. Howser and others against Mordecai Oliver, judge of the criminal court of Greene county. From a judgment awarding the writ, respondent appealed to the St. Louis court of appeals, which reversed the judgment, and certified the case for final hearing. Judgment of the court of appeals affirmed.

John M. Wood, Atty. Gen., and B. U. Massey, for appellant. Goode & Cravens, for respondents.

MACFARLANE, J.

This is a proceeding by mandamus, commenced in the circuit court of Greene county, to compel defendant, Oliver, as judge of the criminal court of Greene county, to certify to the state auditor the fees of 99 witnesses who were summoned to attend, and did attend, the sitting of said criminal court in the trial of the case of State v. Berry, charged with the murder of Kinney, in which the defendant was acquitted. A demurrer to the alternative writ, on the ground that the statements and allegations thereof did not authorize its issuance, was overruled, and defendant answered, averring that a complete fee bill, specifying each item of services and the fee therefor, had been made out and delivered to the prosecuting attorney by the clerk of said court, and that defendant, with said prosecuting attorney, did, after investigating the bill and correcting the same, allow the fees of 95 witnesses in said cause, being all the witnesses examined in said cause on either side, and in such certificate defendant did allow fees for at least 3 witnesses to establish every fact in issue in said cause. A reply to the return was filed, denying the allegations thereof, and the cause was tried upon the pleadings, and resulted in a judgment making the writ peremptory; and from that judgment the defendant appealed to the St. Louis court of appeals, where the judgment was reversed, but the cause was certified to this court for final hearing under the provisions of section 6 of the amendment to the constitution establishing the Kansas city court of appeals.

1. There can be no doubt, we think, of the correctness of the ruling of the court of appeals that, "whether defendant was acting in the premises in a ministerial capacity, as a member of an auditing committee, or whether he was acting judicially, as a judge of an inferior court of record, he was in either event subject to the control and supervision of the Greene county circuit court." Article 6, § 23, Const. Mo.; State v. Daniels, 66 Mo. 192.

2. The right of a witness to have his fees taxed as costs against one party or the other, if it exists at all, must be found within some statutory provision. "No final costs were recoverable by either party at common law." Tidd, Pr. (3d Amer. Ed.) 945; Hoover v. Railway Co., (Mo. Sup.) 21 S. W. Rep. 1077, and cases cited. The statute makes provision that "in all civil actions or proceedings of any kind, the party prevailing shall recover his costs against the other party, except in those cases in which a different provision is made by law." Provision is also made for taxing as costs the fees of witnesses attending the trial of all civil cases under process of the court, and for the collection of the same. Under these provisions the clerks of courts of record, under the supervision of the court, examine and audit the fees of all witnesses. Sections 2920, 2925, 4980, 2946. Under these sections of the statutes, and not otherwise, the witnesses in civil cases are given the right to their fees as incident to the judgment in the case; but it is held, even with these statutory rights, that the witness has no control of the judgment, independent of the party in whose favor it was rendered. Hoover v. Railway Co., supra. In civil actions the parties to the suit are present at every step in the proceeding, watching its progress, and guarding against unnecessary cost and expense, not knowing upon whom it may fall. A plaintiff may be required to give security for the payment of costs, or, if unable to do so, may be allowed, in the discretion of the court, to prosecute his suit "without fees, tax, or charge." Section 2918. It is manifest that these provisions, under which litigants are able to protect...