Bosley v. Parle , 35 Mo. App. 232 ( 1889 )

Biggs, J.,

delivered the opinion of the court.

This is an appeal from the judgment of the circuit court overruling a motion filed by defendant to have the clerk of the court retax the costs in said suit. Defendant in his motion alleged that the clerk of the circuit court had wrongfully and illegally taxed the costs of taking certain depositions against defendant, and was threatening to collect the same by process of law.

It appears from the record that this action was begun in the circuit court on January 21, 1888. On the thirtieth of January, 1888, the court, being advised that plaintiff had given defendant notice of his intention to take depositions in the city of St. Louis, appointed a commissioner, as required by the statute, to take the depositions. By consent of parties, a stenographer was employed. On the thirteenth day of April, 1888, the parties filed a stipulation in court, by which they agreed that the commissioner be allowed seventy-five dollars for Ms services, and the stenographer one hundred and twenty-one dollars. When this stipulation was filed, the following record entry was made: “By consent of parties, it is ordered that F. J. McMaster, Esq., be allowed for services in taking depositions in this cause the sum of seventy-five dollars, and the further sum of one hundred and twenty-one dollars for stenographer’s fees. It is further ordered that such allowance be taxed generally as costs in the case.” This entry was under date of April 13, 1888. On the following day, a final judgment was entered in favor of plaintiff and against defendant for the sum of two hundred and fifty dollars and also a judgment against defendant for ail costs.

The clerk, in accordance with this judgment and order of the court above recited, taxed the fees of the commissioner and stenographer, amounting to one hundred and ninety-six dollars, against defendant.

On the twenty-sixth day of April, twelve days after the entry of the final judgment in the cause, but within the term, defendant filed his said motion alleging that these items of cost were improperly and illegally charged by the clerk against defendant, and that this expense ought to be paid by plaintiff, because the depositions were not taken in good faith and were not used in the trial of the cause. That all the witnesses were well known residents of the city of St. Louis, that they were all in good health and never had any idea or intention of being absent from the city at the trial. That all of the witnesses were present in court and their depositions were not used. The court overruled this motion j the defendant excepted, and has brought the case to this court for review.

The only error complained of, or assigned, is the refusal of the court to sustain defendant’s motion,

The record establishes conclusively that there was no necessity for taking the depositions and that it was a useless expense. But defendant has mistaken his remedy. It is true that a party may at any time during the term at which a final judgment is rendered, or at any subsequent term, file a motion to retax costs, and if the party filing the motion is not satisfied with the ruling of the court thereon, an appeal will lie in his behalf to the appellate court. Shed v. Railroad, 67 Mo. 687; Herson v. Railroad, 18 Mo. App. 439. But this applies only where the duty of taxing the costs in the first instance devolves on the clerk. This is generally a ministerial duty performed by him after the entry of the final judgment; and for the purpose of giving the parties an opportunity to object to any error or mistake of the clerk in the taxation of costs, the law permits the motion to retax to be filed at any time. This is not so, where the costs complained of have been directly adjudicated by the order and judgment of the court. Mann v. Warner, 22 Mo. App. 577.

On the thirteenth, the court allowed the expense complained of and ordered and adjudged that it be taxed as costs. On the day following, to-wit, the fourteenth, a general judgment for costs was rendered against defendant, by which the defendant was made liable for the costs now complained of by him. If he felt himself aggrieved by this, he should have filed his motion for new trial within four days after the rendition of the judgment, and brought to the attention of the trial court, the complaint he now makes. But this was not done, and no action was taken by him until the twenty-sixth, when the motion to compel the clerk to retax the costs was filed. The clerk in taxing the costs against defendant, was only carrying out the judgment, or direct orders of the court. The costs came within the terms of the judgment of the court. The clerk had no discretion in the matter. The judgment will have to be affirmed.

All the judges concur.