West v. Wabash R. Co.

• Decision Date: 07 May 1906
• Citation: 118 Mo. App. 432,94 S.W. 310
• Parties: WEST v. WABASH R. CO.
• Court: Missouri Court of Appeals

94 S.W. 310

118 Mo. App. 432

WEST v. WABASH R. CO.

Kansas City Court of Appeals. Missouri.

May 7, 1906.

APPEAL—ERRONEOUS JUDGMENT—CORRECTION.

In an action against a railway company for killing an animal on its track, the court directed a judgment for double the amount of the verdict, less a sum remitted, together with costs, including $15 as attorney's fee, in all taxed at a sum specified. Held, that the judgment was for damages and for costs, authorizing a modification of the judgment for costs by deducting the attorney's fee erroneously allowed.

Appeal from Circuit Court, Chariton County; John P. Butler, Judge.

Action by John West against the Wabash Railroad Company. From a judgment for plaintiff, defendant appeals. Modified and affirmed.

George S. Grover, for appellant. U. A. House and H. J. West, for respondent.

ELLISON, J.

Plaintiff brought his action for killing his cow by one of defendant's trains at a place where there was no sufficient fence. The finding and judgment were for $45 for the plaintiff. An attorney's fee of $15 was allowed and taxed with other costs. The plaintiff remitted $5 from the finding, and the court doubled the remainder, making the sum of $80. The case is brought here on writ of error bringing up the record proper.

The ground upon which defendant puts its complaint is that the allowance of an attorney's fee was wholly unauthorized, the statute therefor being unconstitutional, the cases of Ry. Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. 255, 41 L. Ed. 666; Paddock v. Ry. Co., 155 Mo. 538, 56 S. W. 453; and Dickinson v. Ry. Co., 103 Mo. App. 333, 77 S. W. 88, being cited in support of the complaint. The specific reason given by defendant for reversal is that judgment in the trial court includes the illegal allowance of an attorney's fee, and that it is impossible to separate the illegal part from the other, and therefore the entire judgment should be annulled. The following is the judgment:

"Now on this 2d day of December, 1905, comes on to be heard plaintiff's motion praying the court to render judgment in his favor for double the amount of damages assessed by the jury in this case, and for a reasonable attorney's fee, said attorney's fee to be taxed as costs; and the court being fully advised in the premises finds that this is a proper case for judgment for double damages under the provisions of section 1105, Rev. St. Mo. 1899, and being informed by defendant's counsel that no appeal is to be taken herein, finds...