Baldwin v. Boulware

GILL, J. At the March term, 1898, an opinion in this case was handed down reversing the judgment and remanding the cause. At that term respondent filed motion for rehearing and at the same time made an offer to remit the damages awarded on one count of the petition. During the said March term also the appellant filed his motion asking an allowance for the cost of printing the abstract. Both these motions went over to the October term, 1898. When plaintiff’s offer to remit was accepted and the former order was so modified as to enter a judgment here for the plaintiff on the other three counts of the petition, to which the remitter did not apply. But by oversight the motion to tax costs which had been at the previous term filed by the appellant was not disposed of and the same was still pending in May, 1899, when the appellants filed a supplemental motion asking this court to tax against the respondent (in addition to the costs of the abstract) the further sum of $300 which the appellant paid to the stenographer of the circuit court for transcribing the evidence [324] adduced at the trial, and which had not been taxed up by the circuit clerk. We new proceed to dispose of the two motions above mentioned — that is, the one asking an allowance of $145.60 for printing appellant’s abstract, and the other, requesting this court to tax against the respondent the further sum of $300 paid the court stenographer for furnishing transcript of the notes of evidence taken at the trial. I. We hold the appellant entitled to an allowance for printing the abstract. It was reasonably sufficient, and set forth all of the record that was “necessary to a full understanding of all the questions presented to this court fox decision,” as required by our rule 15; and in accordance therefore with section 2253 of the Revised Statutes, a reasonable charge therefor should be taxed against the respondent. We will then direct the usual charge of sixty cents a page or $134.40 for the 224 pages, to be taxed against the respondent and in favor of the appellant. II. We fail however to find any lawful authority for taxing against the respondent the compensation which the appellant paid to the stenographer. At common law no costs were allowed. The right thereto can exist only when provided by statute, and it is a well established rule that such statutes are to be strictly construed. Shed v. Railroad, 67 Mo. 687; In re Green, 40 Mo. App. 491. III. Turning now to the several statutes relating to court stenographers, pages 1915 to 1922. Revised Statutes 1889, and we find five separate and distinct articles providing for court stenographers in counties of different population. The first statute relates to stenographers in counties having a population of 350,000 or more; the second to counties of more than 100,000 and less than 350,000 population; the third to stenographers for counties having more than 45,000 and less than 150,000 inhabitants; the fourth article providing for stenographers in counties of 45,000 or less population, etc. [325] Barton county then having a population less than 45,000, comes within the provisions of the act last referred to. Under this statute the judge of the circuit court is authorized to appoint a stenographer whose dutv is to attend the sessions of the court, “and who shall, when directed by the court, take full stenographic notes in every case tried of all the oral testimony, the admissions made by either side, the objections to testimony, etc. * * *; -and shall preserve and furnish a transcript of such stenographic notes, or all or any part thereof, to any person having an interest therein, upon the payment of the fee hereinafter prescribed.” Section 8248. Then follows-section 8251 providing that “such persons calling for a transcript shall pay the- stenographer as compensation ten cents per folio of one hundred words; and in all cases of appeal or writ of error it shall be the duty of such stenographer, upon the application of the appellant 'or plaintiff in error, to make out upon a typewriter two transcripts in duplicate of his notes of the evidence, or such parts thereof as may be requested, one of which copies he shall deliver to the party ordering the same, and the other deposit with the clerk * * * for which said stenographer shall be entitled to be paid for one copy only at the rate hereinbefore prescribed.” It is then made the duty of the clerk to incorporate the copy furnished him by the stenographer into the transcript sent to the appellate court, and for this portion of the transcript the clerk is allowed as his fees five cents per hundred words. We have thus quoted every provision of the statute relating -to the employment of the court stenographers in counties of the size of Barton county which can in any way bear on this question, except section 8250, which provides that said stenographer shall be paid for his attendance at court $5 a day out of the county treasury and, except the further provision contained in section 8249, which directs the circuit clerk to “tax up the sum of two dollars, to be collected as other costs, and thereupon to be paid by said clerk to the [326] county treasurer to apply to the payment of salary of such stenographer.” And it will be seen that there is no express authority to tax as costs any sum or sums of money that any litigant may have paid to the stenographer for a transcript of such portions of the evidence that said party may see proper to order. The only items of cost relating to the stenographer and required by this act to be taxed are first the $2 for each case tried and second the five cents per hundred words charged for that portion of the stenographer’s report that shall enter into the transcript made by the clerk for the appellate court. There is nothing in the entire statute relating to the court stenographer for counties of 45,000 inhabitants or less, that even by fair implication authorizes the compensation paid by the appellant to the stenographer to be charged up as costs in the case. Indeed the implication is rather against the right to have such expenses charged as costs of the case. The mere fact that provision is made for the taxing up of the $2 to each case, and that the five cents per hundred words is taxed for that part of the stenographer’s transcript which is incorporated in the record sent up to the appellate court, tends to show that it was not the intention of the law to charge an additional sum to cover the amount paid by the appellant to the stenographer. Hxpressio unius, exclusio alterius. In providing for stenographers in counties of more than 100,000 and less than 350,000 inhabitants, the legislature intended such fees paid to the stenographers to be taxed as costs and the act plainly expressed that intention. See section 8321, Revised Statutes. Is it not then a reasonable inference that the failure to provide for taxing such expenses in a ease tried in a county of 45,000 or less, was intended not to allow such matters to be charged up as costs of the suit? It results then from these considerations that we allow the cost of printing appellant’s abstract and direct the same to the extent of $134.40 to be taxed against the respondent, but deny the motion asking for the stenographer’s fees. The Judges all concur.