Wilson v. Geitz

Bond, J. — Plaintiff brought an action of damages against defendant, being permitted to sue as a poor person. At the conclusion of plaintiff’s testimony the court indicated a demurrer to the evidence would be sustained, and plaintiff took a nonsuit with leave to move to set it aside. During the term at which these proceedings were had the fees of the witnesses summoned for defendant and the fees of the clerk and sheriff for the issuance and service of process on defendant’s behalf were properly taxed against him. Upon request of the parties entitled and of his own 13 motion, the clerk, after the January term, 1(397, certified a fee bill against said defendant to the sheriff for such costs, which after the lapse of thirty days from demand of payment was levied upon the property of defendant, who moved to quash such levy, and after the overruling of his motion appealed to this court. It is insisted that no fee bills were issuable in this case because plaintiff prosecuted his action in forma pauperis and failed to recover judgment. To support this contention appellant invokes section 2918 of the Revised Statutes of 1889. After providing for permission to a plaintiff to sue as a poor person, the section in question concludes, to wit, “but if judgment is. entered for plaintiff, costs shall be recovered, which shall be collected for the officers of the court.” The intention of the legislature by this clause was to exclude the idea that costs were not collectible in such suits if the plaintiff prevailed. For, as in that event, the costs would fall upon a party not excused from payment, no reason, based on the legal leniency to plaintiff, would exist to prevent the collection of costs from defendant as in other cases. The legislature by this enactment left the defendant liable, just as he would have been if he had been cast in a suit brought in the ordinary manner for all costs. It was not the intention of the legislature in this provision to relieve the defendant from any liability for costs created by him on account of services for which a fee bill might issue under section 4980 of the Revised Statutes 1889. In proper cases fee bills may be issued against litigants under the provisions of that section. The agreed facts disclose that the fee bill in this case was for costs properly taxable under that section and that it was certified and levied in pursuance of the terms of that act. It has been repeatedly held that such costs may be collected by fee bills before the termination of 14 the litigation between the parties; that such a procedure is' merely the method provided by statute for the collection of certain costs accruing during the progress of the litigation. Hoover v. R. R., 115 Mo. 77; State ex rel. v. Emerson, 74 Mo. 610; Watkins v. McDonald, 70 Mo. App. 357, and citations. The judgment of the trial court is affirmed. All concur.