38 Mo. App. 351 | Mo. Ct. App. | 1889
delivered the opinion of the court.
This is an appeal prosecuted by a surety upon a bond for costs, from a judgment overruling his motion to quash a fee bill, which had been issued against him and in favor of the respondent for an allowance made tO' the latter by the court for his services as referee in the case, and for expenses incurred by him in employing a stenographer. The facts upon which the points of law arise áre as follows : In an action brought by the plaintiff against the defendant, the respondent Edmunds was appointed referee by the court, and filed his report recommending judgment in favor of the plaintiff for nineteen hundred and fifty-six dollars and twenty cents. Exceptions were filed to this report by the
An execution was issued on this judgment in favor of the plaintiff and was returned nulla bona, although it does not appear that such execution was issued at plaintiff ’ s request. The plaintiff, being dissatisfied with the judgment, took an appeal to the supreme court, and gave a supersedeas bond, prior to the return of this execution. In May, 1889, and subsequent to this
The surety, appealing from the judgment of the court refusing to quash the fee bill, assigns the following errors : First. That the judgment entry, wherein the allowance was made, having been set aside, the allowance to the referee was vacated, because the subsequent judgment entry contained no order as to the referee’s fees. Second. That the plaintiff is not liable to the referee until the litigation is at an end.
The first assignment must be ruled against the appellant. There is nothing in the record to indicate that the allowance to the referee has ever been vacated; on the contrary, it appears that all proceedings for that purpose were withdrawn by the plaintiff himself. The mere fact, that the order of allowance to the referee is contained in the same entry with the judgment in favor of the plaintiff, does not necessarily constitute it an inseparable part of the judgment entry. It follows the completed judgment entry after the clause awarding execution, and is in fact nothing else but an order of allowance of specific costs.
On the second assignment the law is clearly with thé appellant. The allowance and taxing of costs is matter of statutory origin, and that all statutes touching costs and fees must be strictly construed against the party claiming them is the well-settled law. Shed v. Railroad, 67 Mo. 687; Thompson v. Union Elevator Co., 77 Mo. 520; Ford v. Railroad, 29 Mo. App. 616. Section 5595 of the Revised Statutes of 1879, under which the issue of this fee bill is sought to be upheld, does not include referees in express terms, and, as in the nature of things, no person can claim to be within the equity of a statute, which the policy of the law requires to be construed strictly against him, the respondent’s claim, that he is within the equity of the
It results from the foregoing, that the appellant’s motion to quash the fee bill should have been sustained by the court, and that its judgment must be reversed and the cause remanded with directions to the trial court to sustain the surety’s motion. So ordered.