70 Mo. App. 357 | Mo. Ct. App. | 1897
On October 30, 1895, A. A. Paxson was appointed commissioner to take depositions on behalf of defendant in this case, which is one for damage for an alleged breach of promise. On the second day of November, 1895, said commissioner filed in court the depositions taken before him accompanied by his report, which, omitting formal parts, is to wit: “Tour commissioner further reports that by agreement between the parties, said evidence was taken down in shorthand by C. C. Cowen, and his shorthand notes reduced to typewriting. That there are one thousand, three hundred and twenty-three folios in his report, which at twenty cents per folio, amounts to the sum of $264.60.
“That the number of hours consumed in the taking of said shorthand notes are fifty-two and one half, which, at the usual and customary rate of $2 per hour, amounts to the sum of $93, making a total of $357.60.
“That the defendant has paid on account of said work to said stenographer, the following sums, to wit:
February 8, 1896, cash..............................$100.00
August 10, 1896, cash................................ 50.00 „
- $150.00
which deducted from the full amount leaves a balance due to said stenographer of $207.60.
“That there were thirty-six adjournments and meetings in said commissioner’s office in the taking of said testimony.
“Wherefore, this special commissioner moves the court to allow said stenographer’s bill for the balance claimed, to wit: $207.60, and a reasonable compensation for this commissioner’s services in taking said testimony.
“Respectfully submitted,
“A. A. Paxson,
“Special Commissioner.”
Witness retires from the stand.
Mr. E. A. B. G-aresche (attorney for plaintiff), a witness of lawful age, having been first duly sworn, testified as follows:
11 By Mr. Paxson: Q. Mr. Garesche you were present during the taking of all this volume of testimony, were you not? A. Yes, sir.
“Q. I will ask you to state what, under all the circumstances and your familiarity with the matter, would be a reasonable charge? A. I think the amount you mentioned extremely reasonable. I would not want to do it for any less, if for that much.
.“Witness retires from the stand.
“This was all the evidence offered in the case.”
Thereupon the court sustained said motion and allowed the commissioner $500 for his services, and $357.60 for those of his stenographer, and ordered execution for the aggregate of said sums against defendant. Defendant excepted to said order and filed a motion to vacate and annul the same, on the grounds, among others, that the court had no jurisdiction to order a taxation of costs until the final determination of the cause; that it had no jurisdiction to tax any costs for the services of the stenographer, and that its allowances were unreasonable; that the commissioner was only entitled to receive the same fees as a notary public for taking depositions. In support of this mo
“Rule 28.
“Allowances to referees shall be determined by estimating six hours as constituting a day’s work. Referees shall state in their report the number of hours they have been actually engaged in hearing testimony and preparing their report.”
Defendant also offered oral testimony as to how many of the meetings before the commissioner were occupied in taking evidence and as to the value of the commissioner’s services, which evidence was excluded over defendant’s objection. The court overruled the motion to annul its allowance. Defendant appealed.
by statutory warrant. City of St. Louis v. Meintz, 107 Mo. loc. cit. 615; Thompson v. Elevator Company, 77 Mo. 520; Shed v. Railway, 67 Mo. 687. They are divisible into two kinds: First, those within the
purview of section 4980, Revised Statutes, 1889, in relation to the issuance of fee bills accruing during the progress of the litigation. Secondly, those which are allowable by the court under the general statutes awarding costs to “the party prevailing” and providing for the issuance of execution therefor. R. S. 1889, sec. 2920-2946; Hoover v. Railway, 115 Mo. 77; State v. Oliver, 116 Mo. loc. cit. 191; Dempsey v. Schawacker, 62 Mo. App. 167; Ring v. Paint and Glass Company, 46 Mo. App. 374. In the latter class must fall' all allowances not specifically permitted under the section authorizing fee bills for the services of named officers, jurors and witnesses. It therefore embraces taxation for incidental costs during the progress of the cause, as well as for services of referees and other persons not mentioned in the fee bill section. Conroy v. Frost, 38 Mo. App. loc. cit. 354; Bosley v. Parle, 35 Mo. App. 232. In the case under review the commissioner to take depositions was appointed under the amendment to the statutes adopted in 1885, embraced in section 4440 of the present revision. This act neither fixes .the compensation of the officer empowered thereunder to take depositions, nor provides how or by