German Lutheran Church v. Walther ( 1890 )

Ellison, J.

An ejectment suit by plaintiff, or, if not by plaintiff, at least in its name, was instituted against defendant in the Chariton county circuit court. An answer was filed by defendant, setting up, first, by way of abatement, that the suit was instituted, without authority of plaintiff, by six parties named in the answer ; they, as alleged, having fraudulently usurped the rights and privileges of the congregation after having been expelled. And, second, a general denial. There was a trial of this action before a jury, and a general verdict rendered “for the defendant.” The usual judgment was entered' on this verdict as follows: “ Whereupon it is ordered and adjudged by the court that the defendant go hence without day, and recover of the plaintiff all his costs in and about this suit expended, and have therefor execution.”

At th§ succeeding term the following motion to retax costs was filed:

‘ ‘ German Lutheran Church ' of Brunswick, Missouri, Plaintiff, “F. G. Walther, Defendant.

In the Circuit Court of Chariton County, October Term, 1889.

“Now comes said church by its trustees and attorneys and moves the court to retax the costs in said cause, wrongfully taxed against said church, and that costs be taxed against John T. Hartman, Louis Benecke, F. C. Sasse, Eichard Gutzschebauch, Otto Amerlan and Charley Hopf, for the following reasons:

'■‘First. The cause was tried at the April term, 1889, of this court, wherein it was determined and adjudged that said church was not legally before said court.

“Second. This cause was wrongfully brought by Louis Benecke, John T. Hartman, F. C. Sasse, Eichard Gutzschebauch, Otto Amerlan and Charles Hopf, who, as pretended trustees, brought said suit in the name of said church, without authority or right to do so.”

The parties named therein appeared to this motion, which was, after argument, sustained, and an order entered taking the costs off of the plaintiff and taxing them against the parties named in the motion, who were alleged to have instituted the action without plaintiff’s authority. We are of the opinion that the foregoing proceedings cannot be sustained consistently with established modes of procedure. The effect and result of the matter is, that there now stands a judgment in favor of defendant as to the merits of the •ejectment, and against persons who were not parties to the suit, for the costs. If the parties named wrongfully, and without authority, instituted the action in plaintiff’s name, they have committed a wrong, for which they could doubtless be held liable in a legal way, if any loss, injury or damage resulted to anyone. But we are not able to see our way clear in asserting, in the absence of a statute permitting it, that, on a motion to retax costs, persons, not parties to the original action, can have judgment rendered against them for the costs of such action.

We have been cited to the case of Baker v. Raley, 18 Mo. 562, but that case is unlike this. There, there was an independent action brought against the party sought to be charged with the costs. If the plaintiff in the ejectment suit did not institute the action, nor authorize it, it could, in different ways, resist the payment of costs adjudged against it; and it was, perhaps, well enough to relieve such plaintiff on the motion. But that is another matter from affirmatively adjudging them against persons not parties.

The judgment is reversed.

All concur.