State ex rel. Gray v. Active Building & Loan Ass'n No. 2

| Mo. Ct. App. | Nov 17, 1903

REYBURN, J.

(after stating the facts as above).— . The allowance for services of the counsel of the receiver is a part of the taxable costs in the proceeding, and such costs have a priority over all other demands against the funds in the receiver’s hands. Beach, Receivers, sec. 753 and p. 810. Our statute, affirming this general principle, has made provision in express terms for just and reasonable allowances to be made by the court in favor of a receiver for his services and expenses and' for such allowances to be taxed and paid as costs in the cause. R. S. 1899, sec. 755. A fair interpretation of this statute would comprehend as items of the receiver’s expenses the services of his attorneys in the administration of the estate, the subject of the receivership.

For the purposes of this proceeding, it is needless to* consider or determine whether the action of the court in ordering distribution in February, 1902, constituted a final judgment; if it be conceded for argument’s sake that this order be regarded as a final judgment, which we do not decide, yet the court undoubtedly had the power at a term subsequent not directly succeeding to make an allowance of fees for receiver’s counsel. In Turner v. Butler, 66 Mo. App. 380" court="Mo. Ct. App." date_filed="1896-05-04" href="https://app.midpage.ai/document/turner-v-butler-6618420?utm_source=webapp" opinion_id="6618420">66 Mo. App. 380, a referee’s fees were allowed and taxed at a term other than and after that at which judgment was rendered; and considering the distinct objection made at the circuit court was without jurisdiction to make such allowance after lapse of the' term at which final judgment was rendered, the Kansas City Court of Appeals sustained the trial court Again this court in Clark v. Hill, 33 Mo. App. 116" court="Mo. Ct. App." date_filed="1888-11-27" href="https://app.midpage.ai/document/clark-v-hill-8259582?utm_source=webapp" opinion_id="8259582">33 Mo. App. 116, in opinion rendered on motion for rehearing says: “There is nothing in the statute which prevents this [in retaxing costs] being done at a subsequent term; on the contrary as a matter of practice, it is almost always done at a subsequent term.” In State ex rel. v. R. R., 78 Mo. 575" court="Mo." date_filed="1883-10-15" href="https://app.midpage.ai/document/state-ex-rel-clinton-county-v-hannibal--st-joseph-railroad-8007479?utm_source=webapp" opinion_id="8007479">78 Mo. 575, the court sustained a motion to retax costs so as to embrace an attorney’s fee, after the judgment and costs as first taxed, had been paid and two years and more later. This case also, while not in express terms overruling the case of Ladd v. Cousins, 52 Mo. 454" court="Mo." date_filed="1873-03-15" href="https://app.midpage.ai/document/ladd-v-couzins-8004024?utm_source=webapp" opinion_id="8004024">52 Mo. 454, in which it was held that an allowance to a garnishee can not be made at a term subsequent to that at which final judgment was rendered, being subsequent robs it of controlling authority. No reason can be perceived why the trial court was not empowered to allow such an item of taxable costs of the proceeding even at a term following that term of court at which final judgment had been held.

Appellant was. entitled to be heard upon his application presented, and any balance, found justly due him for legal, services rendered the receiver in the conduct of the administration of the estate, should be allowed as part of the taxable costs of the proceeding, to be paid as other court costs from the funds in the custody of the court, prior to payment of any dividend to the secured creditors. The judgment is accordingly reversed and the cause remanded to be proceeded with in accordance with this opinion.

Bland, P. J., and Goode, J., concur.