Conroy v. Frost , 38 Mo. App. 351 ( 1889 )

Rombaueb, P. J.,

delivered the opinion of the court.

This is an appeal prosecuted by a surety upon a bond for costs, from a judgment overruling his motion to quash a fee bill, which had been issued against him and in favor of the respondent for an allowance made tO' the latter by the court for his services as referee in the case, and for expenses incurred by him in employing a stenographer. The facts upon which the points of law arise áre as follows : In an action brought by the plaintiff against the defendant, the respondent Edmunds was appointed referee by the court, and filed his report recommending judgment in favor of the plaintiff for nineteen hundred and fifty-six dollars and twenty cents. Exceptions were filed to this report by the defendant; the court overruled these, and rendered judgment in conformity with the referee’s report, November 19, 1888. The record entry of this judgment concludes as follows : “ Therefore it is considered by the court that the plaintiff recover of the defendant the debt aforesaid as found, together with his costs and charges herein expended, and have execution therefor, and it is ordered by the court that Henry L. Edmunds, referee herein, be and he is allowed the sum of five hundred dollars as and for his services herein, and that he be allowed the sum of two hundred and one dollars and fifty cents as and for the stenographer’s bill herein, and that said sums, so allowed, be taxed as costs in this cause.” After judgment thus entered, the plaintiff filed his motion to vacate the order allowing the referee the above amounts, claiming that the order was improvidently made, and that the allowance was excessive. This motion, however, the plaintiff withdrew December 1, 1888. On the twenty-first of January, 1889, the court, upon a motion for rehearing made by the defendant, set aside the judgment entry of November 19, 1888, and entered a new judgment in favor of plaintiff, concluding as follows : “It is, therefore, considered by the court, that the plaintiff have and recover from the defendant the aforesaid sum of eleven hundred and seventeen dollars and sixty-four cents, together with his costs and charges herein expended, and have execution therefor.” This judgment entry did not in any way mention the order of allowance theretofore made by the court in favor of the referee.

An execution was issued on this judgment in favor of the plaintiff and was returned nulla bona, although it does not appear that such execution was issued at plaintiff ’ s request. The plaintiff, being dissatisfied with the judgment, took an appeal to the supreme court, and gave a supersedeas bond, prior to the return of this execution. In May, 1889, and subsequent to this appeal, a fee bill was issued by tbe circuit clerk in favor of the referee, being the fee bill sought to be quashed in this proceeding by the plaintiff’s surety on the bond for costs.

The surety, appealing from the judgment of the court refusing to quash the fee bill, assigns the following errors : First. That the judgment entry, wherein the allowance was made, having been set aside, the allowance to the referee was vacated, because the subsequent judgment entry contained no order as to the referee’s fees. Second. That the plaintiff is not liable to the referee until the litigation is at an end.

The first assignment must be ruled against the appellant. There is nothing in the record to indicate that the allowance to the referee has ever been vacated; on the contrary, it appears that all proceedings for that purpose were withdrawn by the plaintiff himself. The mere fact, that the order of allowance to the referee is contained in the same entry with the judgment in favor of the plaintiff, does not necessarily constitute it an inseparable part of the judgment entry. It follows the completed judgment entry after the clause awarding execution, and is in fact nothing else but an order of allowance of specific costs.

On the second assignment the law is clearly with thé appellant. The allowance and taxing of costs is matter of statutory origin, and that all statutes touching costs and fees must be strictly construed against the party claiming them is the well-settled law. Shed v. Railroad, 67 Mo. 687; Thompson v. Union Elevator Co., 77 Mo. 520; Ford v. Railroad, 29 Mo. App. 616. Section 5595 of the Revised Statutes of 1879, under which the issue of this fee bill is sought to be upheld, does not include referees in express terms, and, as in the nature of things, no person can claim to be within the equity of a statute, which the policy of the law requires to be construed strictly against him, the respondent’s claim, that he is within the equity of the statute, is logically untenable. It has been held in State ex rel. Fulkerson v. Emmerson, 74 Mo. 610, that under section 5595, supra, the officers and persons named therein may have a fee bill issued for their fees against the persons liable for the same before the final determination of the controversy, and even though a supersedeas bond, suspending the execution of the judgment, has been given. In view of that decision the fact that a supersedeas bond was given by the plaintiff in this case is immaterial, and we rest our decision solely on the ground that the referee is not one of the persons within the purview of section 5595, and that, outside of that section, there is no statutory provision for issuing a fee bill in favor of any person before the final determination of the suit, except in cases where, as was said in Trail v. Somerville, 22 Mo. App. 314, interlocutory orders awarding costs to be paid at once, by one party, or the other, are made.

It results from the foregoing, that the appellant’s motion to quash the fee bill should have been sustained by the court, and that its judgment must be reversed and the cause remanded with directions to the trial court to sustain the surety’s motion. So ordered.

All the judges concur.