West v. Wabash Railroad Co.

• Decision Date: 07 May 1906
• Citation: 94 S.W. 310,118 Mo.App. 432
• Parties: JOHN WEST, Defendant in Error, v. WABASH RAILROAD COMPANY, Plaintiff in Error
• Court: Kansas Court of Appeals

94 S.W. 310

118 Mo.App. 432

JOHN WEST, Defendant in Error, v. WABASH RAILROAD COMPANY, Plaintiff in Error

Court of Appeals of Missouri, Kansas City

May 7, 1906

Error to Chariton Circuit Court.--Hon. John P. Butler, Judge.

AFFIRMED.

Judgment affirmed.

Geo. S Grover for appellant.

(1) The judgment below, in express terms, as an inseparable part of it, is based upon a portion of section 1105 of the statute which has been declared to be void, as in conflict with the organic law. Such judgment, therefore, cannot stand, as it is incapable of enforcement. Dickenson v. Railroad, 103 Mo.App. 334; Paddock v. Railroad, 155 Mo. 537; Railroad v. Ellis, 165 U.S. 150.

U. A House and H. J. West for respondent.

(1) The only error in the case being the allowance to plaintiff of an attorney fee, and plaintiff having voluntarily remitted said attorney fee, the judgment in every other respect ought to be affirmed by this court. R. S. 1899, sec. 866; Basye v. Ry., 65 Mo.App. 468.

OPINION

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 five dollars 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 attorneys' fee was wholly unauthorized, the statute therefor being unconstitutional, the cases of Railway v. Ellis, 165 U.S. 150, Paddock v. Railway, 155 Mo. 524 and Dickinson v. Railway, 103 Mo.App. 332, 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 attorneys' 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 2nd 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 the damages assessed by the jury in this case and for a reasonable attorneys' fee, said attorneys' 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, Revised Statutes of Missouri 1899, and being informed by defendant's counsel that no appeal is to be taken herein, finds that the sum of fifteen dollars is a reasonable attorneys' fee for the plaintiff in this case, the question of the amount of said attorneys' fee being submitted to the court by agreement without the intervention of a jury, and plaintiff having voluntary remitted the sum of five dollars from the amount of the verdict of the...