72 Mo. 585 | Mo. | 1880
On the 18th day of October, 1877, a decree was rendered in the Livingston circuit court, on a petition filed by the plaintiff for that purpose, placing the railroad and other property of the defendant in the hands of a receiver. On the 27th day of October, 1877, this court granted an appeal from said decree, and a bond having been filed as required by the order of this court, it was ordered that said appeal should operate as a supersedeas. On the 8th day of November, 1877, the transcript of the record was filed and the cause docketed in this court, and by agreement of the parties thereto, said suit was thereupon •dismissed, and the order dismissing the same was on that day entered of record. That order is as follows: “ Now, at this day comes the said appellant by its attorney, James Carr, and upon his motion, it is ordered by the court that this cause be placed upon the docket of this court. Thereupon, the said James Carr, Esq., the attorney of the said appellant, for and in behalf of said appellant, presents a ■stipulation dated October 31st, 1877, signed by said Lemuel ~W. Morse, the respondent herein, and by the Hannibal & St. Joseph Railroad Company, the appellant herein, by James Carr, its attorney, by which said parties stipulate that the cause be discontinued and dismissed without costs to either party as against the other, and that an order to this effect be entered without notice. And the court now being sufficiently advised of and concerning the premises, do consider and adjudge that this suit be discontinued and dismissed without costs to either party as against the other, hut, that the costs of the appeal in this cause be equally •divided between said parties, and that the appellant recover
There was neither occasion, nor authority, for an order in the circuit court dismissing this suit. After the appeal from the judgment of that court was allowed by this court, that court lost its jurisdiction over the cause, and the case was finally disposed of by the judgment of this court dismissing the suit, on the 8th day of November, 1877. My associates are of opinion that after that judgment was entered, the circuit court could, on a motion for that purpose, even at a subsequent term, make an allowance to the receiver for his services as such, and order the same.to be taxed as costs in the cause in that court, but that it had no jurisdiction to enter a judgment against either party for any portion of such costs. We are all of opinion that the judgment of the circuit court of February 15th, 1878, as to costs in this cause, if carried into effect, would annul the judgment of this court dismissing the suit, the effect of which was, that each party should pay his own costs in the circuit court. My own opinion is, that the circuit court had no authority to make any allowance to the receiver for his services after the suithad been dismissed. That matter should have been attended to before the dismissal. To have disposed of the cause properly when it was here on appeal, the judgment of the circuit court should have been reversed and the cause remanded with directions to
