66 Mo. App. 380 | Mo. Ct. App. | 1896
This a motion to retax costs. The action in which the motion was filed was brought in the circuit court of Miller county. The issues in the cause were referred to Joseph R. Edwards, Esq., who heard the evidence, made his findings and filed his report at the September term, 1892, of said court, at which term the said report was confirmed and judgment rendered accordingly. An appeal was prosecuted by the defendants from said judgment to the supreme court, which judgment in December, 1894, was by that court affirmed.
It further appears from the record that the said referee omitted to ask an allowance of compensation for his services before the appeal in said cause had been taken to the supreme court. It further appears that on September 17, 1894, the said referee filed a motion in the Miller circuit court to retax the costs in said cause, alleging as the ground thereof that the clerk of said Miller circuit court, in taxing up the costs when the judgment was rendered in confirming the said report, had, through oversight, failed to tax any fee in his favor as referee, etc.
Subsequently, at the' March term, 1895, of said Miller circuit court, the said motion was heard and an allowance of $500 was made to the said referee, as compensation for his services in said cause, which was ordered to be certified to the probate court of Franklin county, for allowance against the estate of the defendant’s testator.
The defendant, after an unsuccessful motion to set’ aside the said order of allowance, brings the cause here by writ of error.
Costs are charges, or expenditures, which are either allowed and fixed by statute, or are authorized by statute to be allowed and fixed by the court. The fee of a referee is of the latter kind and can not be taxed by the clerk until allowed by the court. The function of the clerk in taxing costs is entirely ministerial. When the latter kind of costs are judicially allowed, it is as much his duty, under the judgment, to tax the latter as it is the former.
The statute provides that where a party is aggrieved by the taxation of costs, he may, upon application, have the same retaxed in the court where the action was had. R. S., secs. 2158, 2941. And this jurisdiction of the court where the action was had is not taken away by an appeal. Briscoe v. Kineally, 9 Mo. App. 590.
Clark v. Hill, 33 Mo. App. 116, was where the referee's report showed that he claimed $400. for his
In Mann v. Warner, 22 Mo. App. 577, it was said that “there is no question, under our statute and practice, of the power of the circuit court, on motion, at a term subsequent to that at which judgment was ren-. dered, to retax costs.” The “statute applies to the instances where the clerk, in the performance of such-ministerial act, has, through mistake, inadvertence, or- • misconception, and the like, omitted or included some proper or improper items of costs against the party complaining. The law recognizes the right of the. complainant to have the judgment of the court in this imposition, and permits the matter to be presented for review in the summary proceeding by motion.” And to the same effect are Bosley v. Parle, 35 Mo. App. 232.; and State v. Railroad, 78 Mo. 575.
From the foregoing adjudications it would seem to be the settled practice under the statutes of this state that referee’s fees are deemed costs which must be. allowed by the court in which the action was had, • before the clerk is authorized to tax the same against the party adjudged to pay the costs of the action; but that the fee of the referee may be allowed by the court and taxed up by the clerk,, at a term of the court after
No reason is perceived why the fee of a referee may not be allowed by the court and taxed by the clerk, after the lapse of the term at which the final judgment is rendered, since this does not, as we have seen, have the effect to disturb the judgment. It will not do to say that the allowance of the referee’s fee, when made at or before the time of the rendition of the judgment on the report, is any more the component part of the judgment than any other item of costs that is allowed and fixed by law. It has been held that even when the fee of the referee is allowed in the judgment confirming the report of such referee, the setting aside of the judgment does not disturb the allowance of the referee because such an allowance is not an inseparable part of the judgment. Conroy v. Frost, 38 Mo. App. 351. That the rule declared in Ladd v. Cousins, 52 Mo. 454, is wholly inapplicable to the allowance and taxation of costs like that now in question, I think is sufficiently demonstrated by what was said in the separate opinion
It follows from these observations that the circuit court had jurisdiction to allow the fee of the referee and to tax the same as costs, on the motion of the referee.
It was admitted on the record that the best part of two months time was occupied by the referee in hearing and reducing the evidence to writing, and in making his findings and report; and also that he had not received any compensation for his services, nor entered into any special agreement therefor. The abstract ■does not state that the foregoing admissions were all the evidence adduced in support of the motion. In the absence of such statement, we may presume there was other evidence introduced in support of it.
Indulging the ordinary presumption in favor of the correctness of the finding of the trial court, we must affirm the judgment.