Dulle v. Deimler

28 Mo. 583 | Mo. | 1859

NaptoN, Judge,

delivered the opinion of the court.

At a special adjourned term of the circuit court of Cole county, in November, the plaintiff, upon his application, obtained a continuance at his costs, and the clerk in taxing the costs under the order included the costs of the regular August term of which the November term was a continuance. At a subsequent term, and after a verdict and judgment for the plaintiff, the court, upon motion, directed the clerk to retax the costs, so as to exclude from the costs of the continuance in November the costs of the regular August term. This opinion was excepted to, and its propriety constitutes the only question in the case.

If tbe November term could be considered as a part of tbe August term in tbe same sense and to tbe same extent that tbe second week of a regular term is regarded as a part of that term, notwithstanding an adjournment from Saturday until Monday, tbe costs accruing in August as well as November would undoubtedly fall upon tbe party procuring a continuance. But we do not so consider it. A special adjourned session of a court is as much a distinct and separate term as a special term called to try criminals, or a regular term which is fixed by law. During a regular term of the court, parties are required to be ready to proceed with the trial on any day which may suit the convenience of the court, subsequent to the day for which the case is docketed; but after the court has adjourned to the next regular term, or to a special adjourned term, as a matter of course no such liability to be called in the interim exists. Although an adjourned special term may with propriety be said to be in continuance of the regular term, because its object is to complete the business which the court is uuable to go through with at the regular term, yet it is a distinct and separate term, and so it is the practice to note it in the record kept by the clerk. That parties and witnesses are required to appear without any additional process, may be so; but this is because of the character of the order of adjournment, which is, for convenience, expressly or impliedly made to embrace this additional requisition. As the parties are in court and their witnesses, or presumed so to be, they are subject to the orders of the court as to the time when they shall appear for a hearing. The same thing might be done where the adjournment is over to the next regular term, if the court thought proper to make such an order.

There is no express provision of the statute on this subject, but general principles of equity and the spirit of the practice act seem to warrant the order of the circuit court in this case. The costs of the adjournment in August, because of the inability of the court to finish the business of the term, ought not to fall upon one party more than ano-tlier¿ neither being in fault and neither responsible for the adjournment. Justice requires that the adjournment should operate as a general continuance, the costs to abide the event of the suit.

We do not perceive any difficulty in the power of the court to have the costs retaxed. Such an order constituted no revision or alteration of a judgment rendered at a previous term. The court was simply called upon to give a construction to its own order, as it related to costs, and if the clerk was mistaken, it was the right and duty of the court to correct the error.

Judge Scott concurring, the judgment is affirmed.