American Surety Co. v. Haynes , 124 Mo. App. 455 ( 1907 )

GOODE, J.

This is an appeal from an order of the court overruling a motion to retax costs. The case originated in Dunklin county, and was sent from there on a change of venue to Madison county. While the pase was pending in Dunklin county a deposition had been taken which called for 1,030 exhibits. After the change of venue was awarded the papers, including the deposition, was sent to the clerk of the circuit court of Madison county. The exhibits called for by the deposition were likewise sent but detached from the deposition itself. They filled a two-bushel box. The clerk asked the advice of the judge of the circuit court as to what he should do with the numerous exhibits in view of the fact that they were detached from the deposition and did not appear to be identified in it. Acting under the judge’s advice he marked each exhibit filed, treating' it as a separate paper in the case. As the clerk is allowed five cents for filing each paper, his costs for filing would amount to $51.50. It is the contention of appellants that the clerk was entitled to only one fee, which was marking the deposition filed, as it would include the exhibits which were part of it. Evidence was introduced pro and con as to whether the exhibits were identified in the deposition so as to be a part of it, or whether they were unidentified, making it necessary to put a filing mark on each one. We are not concerned with the merits of the matter; for, in our opinion, the appeal is premature. The cause itself was still pending in the circuit court when the appeal was taken. In fact there was no proof that any taxation of the costs complained of was ever made either by the court or the clerk, or that a fee bill had been issued to collect them. The motion to retax the costs states inferentially that the clerk had taxed $51.50 in his favor for filing the exhibits, but no proof of this fact was made oh the hearing of the motion. At any rate the appeal will not lie. This was decided by the Kansas City Court of Appeals in a case undistinguishable from, the present one, and, indeed, is the general understanding of the profession. [Boyle v. Clark, 59 Mo. App. 187.] No harm can result as the point has ’been saved by a bill of exceptions.

Appellant cites a case from the Supreme Court of Missouri which it says is in conflict with the decision of the Kansas City Court of Appeals, and authority in its favor. [Shed v. Railroad, 67 Mo. 687.] But in said case the motion to retax costs was filed after final judgment in the case.' We have no doubt this appeal was untimely and it will be dismissed. It is so ordered.

All ■concur.