Parkes v. Woolsey

ELLISON, P. J. Plaintiff brought an action against defendant for damages suffered by reason of defendant’s assault and battery. A judgment was rendered for defendant on the 6th day of May, 1914, during the May Term which included the usual judgment for costs in defendant’s favor against plaintiff. Plaintiff, during the term and on the next day, filed a motion to tax against the defendant costs of certain witnesses which had been subpoenaed, by defendant and were not used at the trial, amounting in all to $31.80. The court sustained this motion and adjudged such costs against defendant. The latter did not file [37] a .motion for new trial, nor did he appeal from the judgment on the motion. But afterwards, on the 4th of June, defendant filed a motion to retax the costs thns adjudged against him and on June 8th this motion to retax was overruled. Defendant then filed a motion for new trial which was overruled and an appeal taken from the last judgment. It thus appears' that the trial court rendered a judgment for certain costs against the defendant which would, but for such judgment, have been taxed by the clerk against the plaintiff who was .the losing party. No appeal was taken from that judgment. But, instead, defendant filed a motion to retax such costs and the court rendered judgment refusing to retax. From this latter judgment defendant appealed after his motion for new trial had been overruled. The appeal cannot be sustained. When the court rendered judgment taxing the costs against defendant he should have appealed from that judgment: Mann v. Warner, 22 Mo. App. 577; Bosley v. Parle, 35 Mo. App. 232; Paul v. Threshing Mach. Co., 87 Mo. App. 647; Beecham v. Evans, 136 Mo. App. 418. The judgment is affirmed. All concur.