Zelle v. Bobb

• Decision Date: 06 November 1883
• Citation: 14 Mo.App. 267
• Parties: AUGUST F. ZELLE, Respondent, v. JOHN H. BOBB ET AL., Appellants.
• Court: Missouri Court of Appeals

14 Mo.App. 267

AUGUST F. ZELLE, Respondent,

v.JOHN H. BOBB ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Nov. 6, 1883.

APPEAL from the St. Louis Circuit Court, BARCLAY, J.

Reversed and remanded.

T. J. ROWE, for the appellants.

DANIEL DILLON, for the respondent.

BAKEWELL, J., delivered the opinion of the court.

In the above entitled cause, which was for the partition of land, the decree was that John H. Bobb is entitled to one-half of the land in fee and to one-tenth in remainder; the other parties respectively were found entitled to separate interests set out in the decree, from which there was no appeal.

On this decree, an execution was issued for costs, which amounted to $1,440.85. This execution commanded the sheriff to make these costs out of the goods, chattels, and real estate of the parties to the action, naming them, but saying nothing as to their respective interests.

Plaintiff moved to amend this execution so as to set forth the respective interests of the parties to the cause as stated in the dccree; and, on the same day, the clerk moved for leave to amend. The court sustained the motion; and ordered that the execution “be amended by striking out in the mandatory clause of the writ the names of all the parties save one, and inserting, after the words, ‘made the,’ the fractional share adjudged against remaining defendants, so as to make the writ perfectly conform to the decree as to one party, and then take new several executions against the remaining parties chargeable with costs.”

The execution was then amended so as to read as follows: “Whereas on 22d day of June, 1882, at our circuit court, city of St. Louis, before one of the judges thereof, in a certain cause therein pending wherein August F. Zelle, was plaintiff, and John H. Bobb, Cora B. Taylor, and James B. Taylor her husband, Philip M. Bobb, Charles H. Bobb and Irene Bobb were defendants, it was adjudged and decreed that the parties hereto pay the costs of this proceeding, amounting in the aggregate to the sum of $1,440.85, according to their respective rights and interests in the lands which are the subject of this proceeding. These are, therefore, to command you, that, of the goods and chattels and real estate of the said John H. Bobb, you cause to be made one-half of the aggregate costs,” etc.

John H. Bobb excepted to this action of the court; and he, and defendants, Charles and Philip, appeal.

The statute provides (Rev. Stats., sect. 1006) that costs in partition shall be paid by the parties plaintiff and defendant, according...