85 Mo. App. 247 | Mo. Ct. App. | 1900
— On Eebruáry 10, 1899, before Robert Walker (one of the respondents), a justice of the peace in
It will be seen from tbe 'foregoing statement tbat this controversy arose on account of a disagreement between Mr. Warren and tbe justice as to tbe amount of costs tbat bad accrued in tbe Douglass suit. Excluding the item of $2.40 (conceded to be erroneous), taxed as constable’s commission, the justice taxed the costs at $2.60 more than Mr. Warren would pay for his client, and which he claims is more than was earned, or accrued. In other words, bis contention is tbat tbe justice has committed error in tbe exercise of bis statutory duty to tax tbe costs and be seeks to correct tbis error by tbe writ of mandamus. Can tbis be done? We think not. It is not denied tbat a justice of tbe peace may be compelled by tbe writ of mandamus to exercise bis statutory duty to tax costs in a suit in wbicb judgment for damages and costs or costs only has been recovered before him. State ex rel. v. Engle, 127 Ind. 457. He may be put in motion by tbe writ, but bis movements can not be controlled by tbe writ after he is once put in motion, for the reason tbat tbe determination of the items to be allowed as costs and tbe amount thereof are judicial, not ministerial acts. State ex rel. v. Jackson, 68 Ind. 58. Tbe writ is appropriate to set tbe machinery of an