Schawacker v. McLaughlin

Barclay, P. J. This is an appeal from certain orders after judgment in the case of Dempsey v. Schawacker (1897) 140 Mo.--(38 S. W. Rep. 954), touching various items of costs in that litigation. The appeal now before this division was taken by Mr. McLaughlin, a surety for costs for the original plaintiff’s, the Dempsey brothers; and it involves the correctness of several rulings of the circuit court as to the extent of the surety’s liability for costs. The principal facts on which those rulings were based are sufficiently shown by the appellant’s statement before this division. The appeal of the plaintiffs in the main case was without a stay of execution, so the defendant proceeded in due time to enforce the judgment pending that appeal. The clerk accordingly taxed against plaintiffs and their sureties the items of costs hereinafter referred to. The circuit court on a motion (filed on behalf of Mr. McLaughlin) to retax the costs, passed on the points we shall discuss in the course of this opinion; and, after making a slight correction (not now material) overruled the motion to retax. The surety then appealed,-after saving exceptions. The motion to retax was filed at a term subsequent to that at which the judgment in the original case became final. — 341 — The. costs in dispute amount to more than $2,500. 1. The judgment entry is said to be unauthorized by the findings of the court touching the matter of costs. It is also said to be void as to the sui’ety because without notice to him. No special finding or notice as to the surety was necessary. His liability grows out of his original undertaking, the judgment against the plaintiffs, and the statutes which define the force and effect thereof. The section (now 2935) which provides for the entry of judgment against the surety for costs, “to the same extent as if the suit or proceeding had been instituted in his own name,” was construed in 1855. It was then held that a person who signed a bond for costs in an action becomes practically a party, so far as concerns the costs. Hamiltons v. Moody (1855) 21 Mo. 79. The undertaking is (to that extent) in the nature of a recognizance by force of the statutory law. No personal notice to the surety before judgment is required. He is considered to be in court. The statute (as construed in the published report of the Hamiltons case) has since been re-enacted in the same terms.' The public and official construction of the statute was widely known, and by the re-enactment became a part of the statute. Handlin v. Morgan Co. (1874) 57 Mo. 116. It was held many years ago to be a settled proposition that a judgment as to costs against the surety for costs might be entered at the same time as the judgment against the principal. McCartney’s Adm’r v. Alderson (1872) 49 Mo. 456. The intent of the statute on this point is made more clear by a glance at an earlier one, which required notice to the sqrety before the entry of judgment against him. R. S. 1835, p. 131, sec. 31. The substitution of the language found now in section 2935 for that of the older law indicates that the lawmakers designed to dispense with such notice. — 342 — When a party becomes surety in view of the now existing law, an entry of judgment for costs against him (along with his principal) involves no violation of any of his rights. 20. A change merely of the issues in the pleadings, after the surety for costs has become bound by his agreement, does not release the surety, even as to those costs accruing after the amendments. Though the issues are enlarged, yet if they are properly enlarged under the law, the surety for costs is 'not released thereby. His undertaking recites an acknowledgment of indebtedness “for all the costs that have accrued or may accrue” in the action between the parties named. He comes into the cause as sponsor for the plaintiff; as to costs; and “the'cause” is a thing which the law permits to assume somewhat varied forms. The liability of the surety for costs patiently follows along the lines of the lawful pleadings in his principal’s case. That is one of the consequences of the undertaking on which the surety embarks when he signs an obligation for costs. 3. It is next contended that the allowance by the circuit court of compensation to the referee is not properly taxable as costs. The statute declares that 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.” (R. S. 1889, sec. 2158). This language does not literally say that the compensation of referees shall be taxed as costs. But the court (authorized to máke the allowance) is not provided by law with any official funds of its own for such expenses. It is hence but a fair and nátural inference that the law intends the allowance to be taxed as costs. Trail v. Somerville (1886) 22 Mo. App. 308. What is within the true intent and spirit of a — 343 — statute is as much a part of it as its letter. Riddick v. Walsh (1852) 15 Mo. 519; State ex rel. v. County Court (1867) 41 Mo. 254; State ex rel. Ins. Co. v. King (1869) 44 Mo. 283; State ex rel. v. Angert (1895) 127 Mo. 462 (30 S. W. Rep. 118). The court’s allowance of compensation to the referee was not expressly ordered to be taxed as costs. It would, no doubt, be more regular to record such an order as part of the entry touching the allowance; but we regard the omission of such a direction as a mere matter of form to be disregarded on appeal in applying the principles laid down in sections 2117, 2100 (R. S. 1889). If we are right as to the effect of the statutory sanction to such an allowance, the implication as to its chargeability as costs applies also to the allowance itself. 4. But the ruling of the court allowing compensation to the stenographer to be taxed against the surety can not be sustained. Such an allowance is not legally chargeable as costs against an objecting surety. The stipulation of the original parties that the charge for such services should be taxed as costs was not joined in by the surety. That stipulation is binding upon all competent parties who made it. But it could not lawfully transform into taxable,costs an item of outside expense, which the law does not recognize as costs. The stenographer was not the official stenographer of the court, but one employed for the hearing before the referee for the convenience of the parties. It is not claimed that there is any law warranting the taxing as costs of the stenographer’s service before the referee. But it is insisted that the stipulation of the parties to the cause is obligatory on the surety for costs. The answer to that contention is that such expenses only become chargeable as costs by virtue of contract, and only those who join in the contract are bound thereby. — 344 — The obligation of a surety for costs can not properly be enlarged without his consent beyond the scope marked by the law. The stenographer’s fee in the case before us is really no item of costs at all. But it may be treated as such between competent persons who agree on the record that it may be so treated. The allowance in this case is good as against those who stipulated to tax it as costs. But Mr. McLaughlin was not one of that number. The learned circuit court was in error in finding against the surety on that item. 5. The apportionment of costs in cases where there are several defenses.or counterclaims is a matter within the discretionary purview of the trial court. Turner v. Johnson (1888) 95 Mo. 431 (7 S. W. Rep. 570). What has been submitted on that subject does not satisfy us that any abuse of discretion occurred in the rendition of judgment for co.sts against plaintiffs on the general result of the suit. So we find no ground of reversal on that account, in view of the provisions of sections 2922, 2923 (R. S. 1889) assuming (as appellant contends) that they apply to the facts of this appeal. 6. The appellant also complains of the rejection of an offer to prove that the defendant paid the greater part of the sum allowed the referee before the report was filed, and argues that such payment would be voluntary and not the subject of taxation as costs. The plaintiffs likewise paid a small part ($175) of the referee’s compensation before the report was filed. Por that payment they received due credit in the trial court’s taxation of costs.- As to the balance (for which plaintiffs and their sureties are liable under the judgment) it is immaterial on .this appeal whether or not the referee has received payment from defendant of the amount allowed for his services. The only ques — 345 — tion is, has it been paid by those adjudged liable, or for their account. The issue appellant sought to raise by the offer of proof was merely whether defendant or the referee should then receive the amount which plaintiffs or their sureties were bound to pay. But that was not a question appellant had the right to start at that time. The allowance to the referee was at an earlier term. The judgment in the main case had become final (so far as concerned the right to enforce it) since the appeal thei*efrom was without stay of execution. The evidence tendered by the surety, and excluded by the court, appeared to question the correctness of the allowance in favor of the referee, but it was too late for appellant to be heard as to that. A motion to re-tax costs, at a term after the judgment became final, could not properly be used to review the amount of a referee’s fee allowed at an earlier term. It was also immaterial (so far as the plaintiffs and their sureties’ rights were concerned) to whom the amount of that allowance should at last be properly paid. The record of the allowance to the referee was ample protection to plaintiffs and their sureties in paying the amount thereof, then unpaid by them. But to make this payment was their duty under the judgment. What thereafter was to become of the fund so paid (on account of the allowance) was a topic which appellant had no right to investigate at that time in the manner proposed by his offer of proof. Eor the reasons given above we< conclude that the ruling on the motion to retax costs should be reversed, and the cause remanded for a rehearing of that motion in conformity with this opinion. Maceablane, Robinson and Bbace, JJ., concur.