Adams v. Missouri Pacific Railway Co. , 1885 Mo. App. LEXIS 343 ( 1885 )

Opinion by

Hall, J.

The single question presented here is, what effect has the supersedeas, provided by statute upon the execution of an appeal bond, upon the right of a person who has rendered services in the case, for which costs may be taxed, to demand payment therefor.

The effect of the supersedeas is to prevent “the issuance of any execution to enforce the judgment appealed from.” The State ex rel. v. Emmerson, 74 Mo. 610. Where the right of a person to demand of the defendant in the judgment, payment of any costs rests and depends upon the judgment alone, that right can be enforced only by an execution issued in pursuance of the judgment, and is therefore suspended by the supersedeas. It is clear that the provisions of section 5595 of the Revised Statutes have no application to such a case. Section 1016 controls and governs under such circumstances. It is only when the person claiming costs is entitled to payment thereof, irrespective of the judgment, that section 5595 applies. Before judgment, by reason of that section, a person, entitled to costs for services rendered at the request of defendant, could, in the manner provided in such section, have compelled the defendant to pay such costs. After judgment, even had the judgment been in favor of defendant, the defendant could have been thus made to pay costs made at its request. Although the defendant has duly appealed from the judgment rendered against it in the original suit, it is bound to pay all costs incurred by it individually. This right of the person entitled to costs to demand payment in such cases does not depend upon the judgment, and is, therefore, in no manner affected by the supersedeas, which stays only further proceedings upon the judgment.

As we understand the case of State ex rel. v. Emmerson, supra, it supports the views herein expressed.

It, therefore, follows, that in so far as the fee bill contained items of costs for which the defendant was made liable only by the judgment against it, from which it had appealed, the motion to quash should have been sustained; and that as to those items of costs incurred for services rendered at the instance or request of defendant, and for which, therefore, defendant was primarily liable, irrespective of the said judgment, the motion to quash was properly sustained.

The judgment of the circuit court is reversed, and this proceeding is remanded for further action by the said court in accordance with this opinion.

All concur.