Manning v. Standard Theater Co.

63 Mo. App. 366, 1895 Mo. App. LEXIS 203

• Court: Missouri Court of Appeals
• Decided: November 12, 1895
• Status: Published

Opinion

Rombauer, P. J.

The plaintiff took an appeal from an order of the court, refusing to recall an execution which has been issued against him for the amount of thefees of a special commissioner and a stenographer appointed to take the testimony of a witness. We are requested to dismiss the appeal on the ground that the order is one from which no appeal lies.

The case, in' which the costs were taxed, is an action of ejectment. It appears from the transcript of the record before us that the plaintiff in the action was compelled to take a nonsuit, but it does not appear what became subsequently of the main case. On our suggestion the parties have filed a stipulation, by which it appears that the main case was appealed to the supreme court and is now pending there on appeal.

The order taxing these costs is a mere incident to the main suit. The fact, that-the plaintiff has saved his exceptions to the order by separate bill, does not warrant a separate appeal to a court other than the one in which the appeal in the main case is pending. Hence, we must order the transfer-of this case to the supreme court, which has exclusive jurisdiction of the appeal in that case.

All the judges concurring,

it is ordered that this case be transferred to the supreme court.