127 Mo. App. 726 | Mo. Ct. App. | 1908
This is an appeal by plaintiff’s from a judgment of the court taxing against them certain cost incurred during the proceedings.
The action was ejectment. The defendant was duly served to appear at the January term of the court for the year 1905, it being the ninth day of said month. After service of summons upon defendant and a short time prior to the beginning of the term, his attorney notified plaintiff’s attorney that he would file a motion to require the plaintiffs to give security for the costs in the case. Under rule 7 of said court, all motions for security of costs were required to be filed on or before the day upon which such cause is set for trial.
This judgment was in favor of plaintiffs for the cost of the case. Afterwards on the same day the court made an additional order in reference to the taxation of cost, viz.; that the cost of all witnesses used in the trial of the cause be adjudged against the defendant and that the cost of all witnesses not used in trial of the case be adjudged against the plaintiffs which included all plaintiffs’ witnesses except those mentioned and also all the defendant witnesses, and included the fees due the clerk for issuing subpoenas for the witnesses and also the fees of the sheriff for serving them.
The question of cost is a matter regulated by the statute. Section 1547, Revised Statutes 1899, provides that “In all civil actions, or proceedings of any kind, the party prevailing shall recover his costs against the other party, except in those cases in which a different provision is made by law.” Section 1548 of the same statute provides as follows: “On all motions the court may give or refuse costs at its discretion, unless where it is otherwise provided by law.” And section 1549, idem, provides that “When any defendant, in any ac
Sec. 1550. “Where there are several counts in any petition, and any one of them be adjudged insufficient, or a verdict on any issue joined thereon, shall be found for the defendant, costs shall be awarded at the discretion of the court.”
Sec. 1551. “Where several persons are made defendants to any action, and any one or more of them shall have judgment in his favor, every person so having judgment shall recover his costs, in like manner as if such judgment had been entered in favor of all the defendants, unless it shall appear to the court that there was reasonable cause for making such person defendant to such action.”
This case being one of ejectment and the answer a general denial, and a plea of counterclaim does not bring the question of cost within the provisions of the statute giving discretionary power to the court to tax cost.
Section 1552, idem, provides as follows:
Sec. 1552. “In all actions not founded on contract, the damages claimed in the petition shall determine the jurisdiction of the court, and if the plaintiff recover any damages he shall recover his cost.” This being an action ex clelioto, under said latter section the cost should have all been taxed against the defendant and in favor of plaintiff. [Dupont v. McLaren, 61 Mo. 511; Vineyard v. Lynch, 86 Mo. 684; Hecht v. Heimann, 81 Mo. 373.]
It was made to appear that plaintiffs did not have the witnesses summoned in their behalf for the purpose