Beecham v. Evans , 136 Mo. App. 418 ( 1909 )

BROADDUS, P. J.

The plaintiff sued in replevin to recover the possession of “300 chickens, one tAvo-months old calf, 2 cows, 2 wagons, old, 32 hogs (extra large), one barn, 2 sets bug;gy harness, 4 outhouses plupder, 1 five-room house, 1 sideboard, 1 icebox, 1 dining room table, 1 cooking stove, 1 heating stove, dishes, pans, cooking ntensils, 3 iron beds, 10 chairs, 1 two-seated surrey (rubber tire), 1 single buggy, 1 bay mare, 1 bay horse', barb wire, fence posts, 1 mule (iron gray), 1 black horse, 1 wagon and harness.”

The Hon. .Joseph D. Perkins was appointed referee to hear the testimony and make a finding as to the law and facts of the case. In due time, the referee heard the case and filed his report. According to the report, a part of the property was found to belong to the plaintiff and a part thereof to the defendant. Both parties filed exceptions to the report. On 27th day of January, 1908, it being on the nineteenth judicial day of said term, the court overruled the said exceptions and rendered judgment for plaintiff for the property shown by the referee’s report to belong to him and rendered judgment for defendant for that part said report said belonged to him, and divided the costs equally between the parties.

On the 7th day of February, 1908, plaintiff filed a motion to correct the judgment and retax the costs. On the 8th day of February, 1908, it being the twenty-ninth judicial day of the term, plaintiff’s motion was overruled, from which action of the court in overruling his motion the plaintiff appealed.

Without expressing any opinion as to the propriety of the action of the court in taxing a part of the costs in a suit in replevin against the plaintiff when the plaintiff recovers any part of the property replevined, we are constrained to hold that the error, if one, cannot be corrected by a motion not filed within four days after the rendition of the judgment. This is not properly a motion to retax costs, but is a motion to correct the judgment itself.

‘When items of costs are specifically allowed by the trial court and adjudged against a party, such allowance and judgment cannot be reached by the ordinary motion to retax, which is applicable only to the ministerial taxation of costs by the clerk after entry of judgment. A motion for a new trial, within the proper time, is the only way for obtaining revision of a specific judgment for costs.” [Bosley v. Parle, 35 Mo. App. 232; Paul v. Threshing Machine Co., 87 Mo. App. 647.]

Plaintiff in error has cited authorities to the effect that, “A judgment remains in the breast of the court during the entire term at which it is rendered and may be set aside or vacated at any time during such term.” [Harkness v. Jarvis, 182 Mo. 231.] While such is the law, it will not avail plaintiff. While the judge at his own instigation may exercise such right, the law imposes the duty upon a party to the cause, if he thinks there has been any injustice done him, to file his motion within four days from the day of the rendition of the judgment.

Affirmed.

All concur.