176 Mo. 443 | Mo. | 1903
The appeal in this case is from the action of the Schuyler Circuit Court in overruling a motion filed by the plaintiff to allow the attorneys for the col
The trial upon this motion was begun on the 12th of November, 1900. There was evidence introduced by both the relator and the defendant; but the view we take of the law that must control the questions involved, makes it unnecessary to burden this opinion with a statement of such evidence. The motion was submitted to the court upon the testimony introduced, and the court, on the 20th day of November, 1900, overruled the motion. From the action of the court, in respect to such motion, this appeal is prosecuted.
It will be observed that the original suit by the collector for the recovery of certain taxes, in which the services of the attorneys were rendered for which they seek to recover upon this motion, was tried and final judgment rendered in the circuit court of Schuyler-county, on the 12th day of November, 1896.
At the very inception of this controversy, we are confronted with the vital question involved in this case, as to the right under the law to maintain this proceeding, after the lapse of so many years, and not only after the termination of the term at which the final judgment was rendered, but after the lapse of many terms of that court.
This is a proceeding, by motion, to have taxed as
“It shall be the duty of the prosecuting attorney of each county to prosecute all suits for taxes under this article. County collectors shall have power, with the approval of the county court, or in St. Louis city, the approval of the mayor thereof, to employ such attorneys as may be deemed necessary to aid and assist the prosecuting attorney in conducting and managing such suits; and the court in which suit is brought shall, if plaintiff obtain judgment, allow such attorneys a reasonable fee for bringing and conducting such suit, which shall be taxed against the defendant and paid as other costs in the case. At the request of the collector, the Governor may direct the Attorney-General to assist in the prosecution of any such suits. ’ ’
It will be noted that upon the rendition of judgment for the plaintiff in such tax proceeding, “the court in which suit is brought shall, if plaintiff obtain judgment, allow such attorneys a reasonable fee for bringing and conducting such suit, which shall be taxed against the defendant and paid as other costs in the case.”
It is apparent from this statute that judicial action is required by the court in fixing the reasonable amount to be allowed the attorneys for their services in the tax proceeding.
In the case of Briggs v. Railroad, 111 Mo. 168, in construing section 2613, Revised Statutes 1889, which provided that, “if the owner of any live stock, including horses, mules, asses, cattle, sheep and hogs, whenever the same shall have been injured or killed, as in section 2612 described, shall be compelled to bring suit in court to recover the damage so sustained, it shall be the duty of every court in which such suit may be heard to tax a reasonable attorney’s fee in such suit in favor of the
In the case of Berberet v. Berberet, 136 Mo. 671, the court very clearly announces the rule and reviews the authorities as to applications for the taxation of cost at a term subsequent to the one at which the final judgment was rendered.
The court in that case, speaking through Gantt, J., says: “It was ruled in Dulle v. Deimler, 28 Mo. 583, that the courts of this State might retax costs at a subsequent term under judgments made at prior terms. That opinion was predicated upon the fact that the court had adjudged the costs and the subsequent retaxing was not a revision or alteration of the judgment, but was the act of the court correcting the mere ministerial act of the clerk who had, through misapprehension of the court’s order, improperly taxed the adjudged costs. Subsequently in Ladd v. Couzins, 52 Mo. 454, it was held that an allowance to a garnishee can not be taxed after the lapse'of the term at which final judgment is rendered in a cause. The statute required the court to allow the garnishee a sum sufficient to indemnify him for his time and expense and a reasonable attorney’s fee. It was evident that this allowance called for judicial action and this the court could only exercise before the adjournment of the term at which final judgment was rendered. To the same effect is Jackson v. Railroad, 89 Mo. 104. The allowance for printing is very similar to an allowance to a garnishee. It requires judicial action and can only be had during the term. We have been confirmed in our view of this section by the very satisfactory and thorough discus
It will be noted that the court, in the case last cited, fully approves the announcement of the rule on this subject, in the cases of Ladd v. Couzins, 52 Mo. 454, Jackson v. Railroad, 89 Mo. 104, and Wilson v. Stark, 47 Mo. App. 116.
It will be observed that all the cases treating of applications to tax costs at a term subsequent to the one at which final judgment was rendered, make clear the distinction of taxing costs, which are definite and fixed by law, and costs which require judicial action in deter: mining the amount.
Appellant earnestly invites our attention to the cases of Turner v. Butler, 66 Mo. App. 380; State ex rel. v. Railroad, 78 Mo. 575; Clark v. Hill, 33 Mo. App. 116, and Dulle v. Deimler, 28 Mo. 583, and insists that they furnish support for his position, that the trial court committed error in refusing to tax the attorneys ’ fees, as cost, upon the motion filed for that purpose. A careful examination of those cases will demonstrate that they keep in view the distinction herein mentioned, as to the taxation of costs definitely fixed by statute, and those costs which require judicial action by the court.
In the Turner ease, supra, the learned judge disclaims that the views expressed conflict with the rule announced in the case of Ladd v. Couzins, supra, and emphasizes that fact by calling attention to his separate opinion in the case of Wilson v. Stark, 47 Mo. App.
The case of State ex rel. v. Railroad, 78 Mo. 575, is in perfect accord with the distinction drawn in all the cases. In that case, which involved the assessment of an attorney’s fee, in a suit for the"collection of back taxes, that suit was instituted under the law of 1875. The statute definitely fixed the amount to be allowed the attorney for his services, the samé as other items are fixed for other officers. It is apparent in that case that no judicial action of the court was required, hence it is not applicable to the question presented in this record.
The section of the statute, 9378, Revised Statutes 1899, which provides for the taxing of fees of the attorneys for services rendered in obtaining the judgment for taxes, requires the court to judicially ascertain before the amount is taxed, as to what would be a reasonable amount for the services performed. The amount to be allowed for such services were not ascertained and taxed at the term of court in Schuyler county at which the final judgment was rendered in the original tax proceeding, nor was it attempted to be taxed at the term of this court in which such judgment was affirmed, and we are clearly of the opinion, in view of the adjudications on that subject; that it can not be done, as is sought by this motion to do, taxed three years after the final judgment was rendered, of. which the attorneys’ fees formed a component part. ' ■
Having reached the conclusion that the action of the trial court, in respect to this motion, was correct, it is unnecessary to discuss the question as to the cpnsititutionality of the statute providing for the taxing of attorney’s fees in cases of that character. Upon this ap
With the views as herein expressed, the judgment of the trial court, in overruling the motion, will be affirmed.