33 Mo. App. 116 | Mo. Ct. App. | 1888
Lead Opinion
delivered the opinion of the court.
On the twentieth day of September, 1884, C. P. Clark instituted a suit in the circuit court of the city of St. Louis against Britton A. Hill on an assigned account for $2,729, the same being for “work done and services rendered by Samuel B. Gordon as attorney and counsellor at law, R. S. McDonald appearing as attorney of record for the plaintiff. On the twenty-seventh of the following October the following bond was filed :
“I acknowledge myself bound for all costs that have accrued or may accrue in the case of C. P. Clark against Britton A. Hill.
“ Witness my hand and seal at St. Louis, this 19th lay of September, 1884.
(Signed), “ R. S. MacDonald, Seal.”
On the tenth day of March, 1885, the cause was, by consent of all parties, referred to Judge T. J. C. Fagg as referee, to try all the issues therein and report thereon to the court. The record shows that Fagg after qualifying proceeded to hear the evidence, and after some forty days completed the hearing and filed his report on the twenty-seventh of March, 1887. Attached to this report and made a part of it was a detailed statement of all the costs incurred before the referee as follows :
“To Referee, T. J. C. Fagg.............$400 00.
Stenographer, Goodman.............. 40 00.
Costs paid by defendant.............. 13 50.
Notary, Alford....................... 5 00.
Commissioner, Eagan................. 3 00.
Witnesses before Referee.............. 75 00.”
The report of the referee (who found the issues for the defendant) was approved by the court, and judgment entered of record against the plaintiff and her
Section 3626, Revised Statutes, provides: “Referees, in the absence of any special agreement, shall receive such compensation for their services as the court in which the case is pending may allow, not exceeding ten dollars per day.” From this it is quite evident that the referee cannot fix his own fee. It must be allowed by the court. The fee of the referee was not embraced in the report submitted, nor could he be a judge of his own case. The attaching of his fees to the report was in the nature of a suggestion to the court as to the amount which should be allowed him, and is no part of his report. We also think that the fees of referees must be formally allowed by the court in proceedings where the question of his compensation is brought to the attention of the court, but we think that has been sufficiently done in this casé by the order which the court made on the motion to re-tax the costs. The referee has performed the services required of him, and while it may seem a hardship on the security on the cost-bond to pay,
We see no good reason why this case should be remanded, but from the views herein expressed it follows that the judgment must be reversed. The order of the court will be that the motion to re-tax costs be sustained as to all the items complained of except the item of four hundred dollars, referee fee allowed T. J. C. Fagg, and that judgment be entered accordingly in this ■jourt.
Rehearing
delivered the opinion of the court on a motion for rehearing.
Complaint is made by the appellant that our position is inconsistent in holding that the .referee’s fees . must be allowed by the court to be taxable as costs, and yet deciding that the court’s refusal to re-tax the referee’s costs, or to disallow such costs, is equivalent to their allowance. This complaint is more specious than • sound. There must be an allowance indeed, but there is nothing in the statute or practice which prevents the court from making it upon mere inspection of the referee’s report.
A judgment in favor of one party against another for costs never specifies the amount of ■ costs in detail, and yet includes all costs legally taxable. If the costs are improperly taxed either party may move the court
We are referred by the appellant to the case of Ladd v. Couzins, 52 Mo. 454, in which Judge Ewing intimates that an allowance which is costs must be made at the term at which the judgment is rendered. The opinion is not well considered, yet under the constitution it would be binding upon us, if it were the last controlling decision of the supreme court. That court, however, has taken the opposite view in Clinton v. Railroad, 78 Mo. 575, where $319.50 was taxed by the court as attorney’s fee in the case, three years after the rendition of the final judgment, and two years after the execution issued thereon had been satisfied.
There was nothing in the case at bar which would have prevented the mover from raising the question as to the amount allowed the referee on this motion. As the court had power to allow the referee’s fees upon an inspection of the report, and as that report was before the court upon the hearing of the motion, we are justified, in absence of any evidence to the contrary, to infer that the refusal of the court to disallow the item was equivalent to its allowance. This holding violates no principle, and is consonant with the obvious justice of the case.
All the judges concurring, the motion for rehearing will be overruled.