Clark v. Hill

33 Mo. App. 116, 1888 Mo. App. LEXIS 450

• Court: Missouri Court of Appeals
• Decided: November 27, 1888
• Status: Published

Opinions

Peers, J.,

delivered the opinion of the court.

On the twentieth day of September, 1884, C. P. Clark instituted a suit in the circuit court of the city of St. Louis against Britton A. Hill on an assigned account for $2,729, the same being for “work done and services rendered by Samuel B. Gordon as attorney and counsellor at law, R. S. McDonald appearing as attorney of record for the plaintiff. On the twenty-seventh of the following October the following bond was filed :

“I acknowledge myself bound for all costs that have accrued or may accrue in the case of C. P. Clark against Britton A. Hill.

“ Witness my hand and seal at St. Louis, this 19th lay of September, 1884.

(Signed), “ R. S. MacDonald, Seal.”

On the tenth day of March, 1885, the cause was, by consent of all parties, referred to Judge T. J. C. Fagg as referee, to try all the issues therein and report thereon to the court. The record shows that Fagg after qualifying proceeded to hear the evidence, and after some forty days completed the hearing and filed his report on the twenty-seventh of March, 1887. Attached to this report and made a part of it was a detailed statement of all the costs incurred before the referee as follows :

“To Referee, T. J. C. Fagg.............$400 00.

Stenographer, Goodman.............. 40 00.

Costs paid by defendant.............. 13 50.

Notary, Alford....................... 5 00.

Commissioner, Eagan................. 3 00.

Witnesses before Referee.............. 75 00.”

The report of the referee (who found the issues for the defendant) was approved by the court, and judgment entered of record against the plaintiff and her security, R. S. MacDonald, for the costs in the case. On this judgment an execution was issued and delivered to the sheriff of the city of St. Louis. On this execution MacDonald paid a few dollars and moved the. circuit court to recall the execution and re-tax the costs on the ground that no “ allowance ” of the various items was made by the circuit court; the court overuled the motion except as to witness fees before the referee, and one or two other immaterial matters. The main point of contention here is the fee of four hundred dollars, claimed by Fagg for his services as referee; and the error, if any, consists in the action of the court in overruling the motion to re-tax the costs so far as concerns this fee. There is no question but that Fagg rendered the services charged for, nor is there any complaint relative to the amount charged, the whole contention being that the court did not “allow” the item by entering a separate judgment for the amount.

Section 3626, Revised Statutes, provides: “Referees, in the absence of any special agreement, shall receive such compensation for their services as the court in which the case is pending may allow, not exceeding ten dollars per day.” From this it is quite evident that the referee cannot fix his own fee. It must be allowed by the court. The fee of the referee was not embraced in the report submitted, nor could he be a judge of his own case. The attaching of his fees to the report was in the nature of a suggestion to the court as to the amount which should be allowed him, and is no part of his report. We also think that the fees of referees must be formally allowed by the court in proceedings where the question of his compensation is brought to the attention of the court, but we think that has been sufficiently done in this casé by the order which the court made on the motion to re-tax the costs. The referee has performed the services required of him, and while it may seem a hardship on the security on the cost-bond to pay, it is not fine that we can relieve against. The defendant is clearly not liable for it in any view under the finding and judgment of the court and it must be paid by the plaintiff. The fees allowed by the court to notary Alford of five dollars and commissioner Eagan of three dollars must be stricken out, for the reason that the record shows that those fees were for taking depositions in another state, and it nowhere appears that any commission for that purpose was issued or the issuance thereof waived under our statute, t They are not therefore depositions for which costs can be compulsorily collected. R. S. sec. 2139, and following.

We see no good reason why this case should be remanded, but from the views herein expressed it follows that the judgment must be reversed. The order of the court will be that the motion to re-tax costs be sustained as to all the items complained of except the item of four hundred dollars, referee fee allowed T. J. C. Fagg, and that judgment be entered accordingly in this ■jourt.