92 Mo. App. 50 | Mo. Ct. App. | 1902
In this case O. L. Keaton, who is tbe real appellant, was surety on tbe bond for costs of Katie and Erank Decker, in an action brought by- them against tbe defendant to recover damages for tbe death of their son. Subsequently tbe action was compromised and an agreement made between tbe parties that it should be dismissed, each side to pay tbe costs they or it bad made. A minute to that effect was entered on tbe judge’s docket and also on tbe clerk’s minute book, and after tbe adjournment of court, as tbe bill of exceptions shows, tbe clerk wrote an entry in tbe record which was not only an order for tbe dismissal of tbe action as stipulated by tbe parties, but a judgment that tbe defendant recover of tbe plaintiffs tbe costs and charges which bad accrued on tbe part of plaintiffs and that execution issue therefor against them and their security on tbe cost bond, and also that tbe plaintiffs recover of tbe defendant all costs accrued on tbe part of defendant and that plaintiffs have execution therefor. The purpose of this entry, which was unauthorized by tbe court as both tbe judge’s and clerk’s minutes disclose, must have been
Subsequently an execution was issued against the plaintiffs and Keaton as their surety, without any direction from the defendant to the clerk to issue it. By virtue of this execution the sheriff undertook to garnish a debtor of Keaton’s, but the return shows he did no more than summon said debtor to appear at the return term of the writ without attaching or seizing in his hands the indebtedness he owed Keaton. This attempted'Service occurred on the twenty-second day of February.
At the return term, Keaton moved to quash the execution on various grounds; the court overruled the motion and he appealed.
The execution should have been quashed for the following reasons:
Eirst. The return of the sheriff was insufficient to give the court jurisdiction over the debt due from the garnishee to Keaton. Norvell v. Porter, 62 Mo. 309.
Second. The service of the writ was absolutely void as it was made on a legal holiday. Section 4683, R. S. 1899.
It should be remarked, too, that this judgment, though it can not be held a nullity on the present appeal, ought never to have been entered. It was contrary to the stipulation of the parties and was not ordered by the court. The statutory provision for the collection of costs due officers and witnesses is by a fee bill. No one is entitled to a judgment or execution for costs except the successful party in the case for such costs as he has incurred in the prosecution or defense of it, and he may, if he chooses, waive his right to a judgment or execution therefor. Hoover v. Railroad, 115 Mo. 77.
The clerk of a court who enters a judgment of the kind found in this record, or of any kind, without an order from the court, is guilty of a monstrous usurpation of authority and one which might have ruinous consequences. He should content
The judgment is reversed and the cause remanded with the. direction to the circuit court to set aside its order overruling appellants’ motion to quash, and make an order sustaining said motion.
