Steele v. Wear

• Decision Date: 31 January 1874
• Parties: D. K. STEELE, Respondent, v. SAMUEL WEAR, Appellant.
• Court: Missouri Supreme Court

54 Mo. 531

D. K. STEELE, Respondent,

v.SAMUEL WEAR, Appellant.

Supreme Court of Missouri.

January Term, 1874.

Appeal from Cooper Circuit Court.

Hayden & Tompkins, for Respondent.

I. The right to costs depends altogether on Statute. (2 Bac. Abr. title ““Costs,” p. 484, “A”; Tidd's Pr. p. 864; Bouv. Law Dict. I Vol., title, “““Costs,” p. 370 and authorities referred to.)

II. That each House sits as a court, exercising judicial functions in deciding upon the election, etc., of members, and that their judgments in such cases are conclusive. (See Cool. Const. Lim., p. 133.)

III. If costs were allowed as part of such judgment, then

the only means to enforce payment of them is by process on the judgment, or by suit based on it, and an action in the nature of assumpsit for cost eo nomine will not lie. (Wagn. Stat., 574, § 58.)

McMillan Bros., for Respondent.

I. The statute in relation to Elections provides that, “in all contested election cases, costs may be adjudged against the unsuccessful party, and payment thereof enforced as in civil cases.” And the statute in relation to costs in civil cases, provides that, “in all civil actions or proceedings of any kind, the party prevailing shall recover his costs against the other party, except cases in which a different provision is made by law.” (Wagn. Stat., 374, § 58, also, 343, § 6.)

II. The justices of the peace, selected by appellant and respondent to attend to the taking of the depositions in said contested election case, had no power to adjudge costs. Their power is limited by the statute to subpœnaing witnesses and taking and certifying the depositions. The House of Representatives could not enter up a judgment and enforce its collection as in civil cases. Hence the statute above referred to would be meaningless when applied to the case at bar, unless the respondent has his remedy against appellant in a civil action to collect costs which are forced upon him in an unsuccessful attempt by appellant to oust him from his seat in the legislature.

III. The appellant being unsuccessful in his said contest before the legislature, the statutes make him liable to the respondent for costs, and the respondent may bring his action to enforce the collection thereof, in any court of competent jurisdiction. (Davis vs. Farmer, 28 Mo., 54; Peralta vs. Adams, 2 Cal., 594.)

VORIES, Judge, delivered the opinion of the court.

This action is brought by the plaintiff to recover from the defendant, certain costs expended by plaintiff in a proceeding, instituted by defendant before the House of Representatives of the General Assemby of the State of Missouri, to contest the election of plaintiff to the office of representative from Cooper county, to said House of Representatives.

The petition is substantially as follows. It is charged that plaintiff was on the eighth day of November, 1870, duly elected, Representative to the Twenty-sixth General Assembly of the State of Missouri from the Second Assembly District of Cooper county in said State; that on the first day of December, 1870, said defendant proceeded to contest the declared election of plaintiff as such representative, and in pursuance of the statute in such case provided, plaintiff selected and employed one George W. Koonts, a Justice of the Peace, for Cooper county, to attend to the taking of the depositions in said contest on the part of plaintiff; that said justice, in connection with a justice selected by the defendant, proceeded to take the depositions of witnesses in said cause, for the period of seventeen days, and which said depositions were duly certified and sent to the speaker of said House of Representatives of the Twenty-sixth General Assembly, of the State of Missouri as the law directs; that in and about his defense to said contest, plaintiff was compelled to and did spend a large sum of money in procuring the services of constables in summoning witnesses and justices of the peace, in issuing subpœnas and in fees paid witnesses for their attendance to give their depositions. The petition setting forth the officers and witnesses to whom the money was paid and the amount paid each, amounting in the whole to $158.15, which said sum consisted of the legal fees, of such officers and witnesses for their services and attendance, etc.; that said contest was prosecuted before said House of Representatives by defendant to its final termination in which defendant was defeated in his contest and plaintiff by the final decision and resolution of said House of Representatives, declared to be the duly elected member, etc. Whereby an action accrued to plaintiff to have and recover of and from the defendant, the said sum of money so expended with interest, costs, etc., and for which judgment was prayed.

The defendant demurred to this petition, stating among other causes that the petition, did not state facts sufficient to constitute a cause of action, and that from the facts stated in the petition no such sums were allowed by law for such services, as costs, and that no costs had been adjudged in plaintiff's...