Winn v. Modern Woodmen of America

146 Mo. App. 69 | Mo. Ct. App. | 1909

REYNOLDS, P. J.

On Motion to Tax Costs for Printing Abstract: In this case this court, at the March term, 1909, reversed the judgment of the circuit court and remanded the case. Subsequently, and at the October term, 1909, a motion was filed to allow and tax in favor of the appellant, the costs of printing the abstract. We sustained that motion and allowed and taxed |107.25 as costs. Since then, a doubt having arisen in our own minds as to the correctness of this action, we have looked into the matter and with the result that we have concluded that our action was erroneous. This very question arose in the cases of Wilson & Co. v. Stark, 47 Mo. App. 116, and Berberet v. Berberet, 136 Mo. 671, and the conclusion arrived at that after the term at which the cause was decided, no motion having been filed, at that term or within ten days after its adjournment, the pendency of which had the effect of carrying the case over to a subsequent term, the court had no' jurisdiction to allow and tax as costs the cost of printing the abstract. The principle upon which this lack of jurisdiction rests is very clearly announced by the Supreme Court in State ex rel. O’Briant v. Keokuk & Western R. R. Co., 176 Mo. 443. Allowance and taxation of costs such as these require judicial action, and where that is the case, such action cannot be taken at a term subsequent to the one at which final judgment was entered.

The judgment allowing and taxing as costs the cost of printing the abstract is hereby set aside and the motion to tax in favor of appellant as costs, the cost of printing the abstract, is hereby overruled.

All concur: