The State ex rel. Howser v. Oliver

• Decision Date: 22 May 1893
• Parties: The State ex rel. Howser v. Oliver, Judge, Appellant
• Court: Missouri Supreme Court

22 S.W. 637

116 Mo. 188

The State ex rel. Howser v. Oliver, Judge, Appellant

Supreme Court of Missouri, First Division

May 22, 1893

Certified from St. Louis Court of Appeals.

Affirmed.

B. U Massey, T. J. Delaney and John M. Wood, Attorney General, for appellant.

(1) The circuit court had no power, authority or jurisdiction to grant said writ. The judge of the criminal court had exercised his judgment and discretion and passed upon said fee bill; if erroneous, that judgment can by proper means be reviewed and corrected in the appellate court, but the circuit court cannot substitute its judgment for the judgment of the judge of the criminal court. (2) The judge of the criminal court of Greene county is forbidden by law from allowing and certifying fees against the state to witnesses who were not examined in the case, or from taxing the state with more than the costs of three witnesses to establish any one fact. Revised Statutes, 1889, sec. 4420; State ex rel. v. Hill, 72 Mo. 512.

Goode & Cravens for respondents.

(1) The circuit court shall exercise superintending control over criminal courts * * * and all inferior tribunals in each county in their respective circuits. Constitution of Missouri, art. 4, sec. 23. The circuit court has power by mandamus to control inferior tribunals. County Court v Sparks, 10 Mo. 117. (2) The criminal court of a county is an inferior tribunal, subject to supervisory control by the circuit court. Constitutional provisions, supra; State v. Daniels, 66 Mo. 192; State ex rel. v. Laughlin, 73 Mo. 443. (3) But this is not a proceeding against the criminal court at all. It is against an officer -- the judge of that court. Aside from the constitutional provision cited above, the circuit court by virtue of its general jurisdiction may control officials within its county in ministerial matters by the writ of mandamus. In a proper case (that is to say when no redundant witnesses were summoned) the judge may be compelled by mandamus to certify for payment, a bill of their fees. State ex rel. v. Hill, 72 Mo. 512. The evidence shows that no unnecessary witnesses were subpoenaed either by the state or defense for Berry's trial, and that not more than three witnesses were subpoenaed in fact. The fees of witnesses called in good faith, though not examined, are allowed. Lee v. Hodges, 3 Scam. (Ill.) 15; Jeffrey v. Hirsch, 58 Mich. 246.

Macfarlane J. Barclay, J., is absent.

OPINION

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 ninety-nine witnesses, who were summoned to attend, and did attend the sitting of said criminal court, in the trial of the case of the 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 ninety-five 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 three 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 six of the amendment to the constitution establishing the Kansas City court of appeals.

I. 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." Const. of Mo., art. 6, sec. 23; State v. Daniels, 66 Mo. 192.

II. 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 the plaintiff or defendant at common law." Tidd's Practice [3 Am. Ed.] 945; Hoover v. Railroad, 115 Mo. 77, 21 S.W. 1076, 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 records, under the supervision of the court, examine and audit the fees of all witnesses. Secs. 2920, 2925, 2946, 4980. 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. Railroad, 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." Sec. 2918. It is manifest that these provisions under which litigants are able to protect themselves against improper and unjust allowance of cost would afford no safeguard against extravagance, impositions and frauds in case the costs should be payable out of the public treasury. A more careful investigation in the allowance of costs in criminal cases and proper limitation upon the number of witnesses in whose favor costs should be taxed became therefore necessary. To meet these wants are the following sections of the statutes of 1889:

Sec 4411. "The clerk of the court in which any criminal case shall have been determined or continued generally shall, immediately after the adjournment of the court and before the next succeeding term, tax all costs which have accrued in the case; and, if the state or county shall be liable under the provisions of this article for such costs or any part thereof, he shall make out and deliver forthwith to the prosecuting attorney of said court a complete fee bill, specifying each item of services...