Manning v. Standard Theatre

BIGGS, J. The plaintiff gave notice to take depositions in the above cause. On application of defendant, E. T. Earish was appointed special commissioner to take the depositions. He performed that duty. In taking the depositions he availed himself of the services of James T. Eoberts, who is a stenographer. ■ Subsequently the pláintiff took a nonsuit and thereupon Earish and Eoberts made application to the court for allowances for their services to be taxed as costs in the case. Earish was allowed twenty dollars, and Eoberts was allowed fourteen and eighty-five one hundredths dollars for transcribing his notes, and six dollars for three hours attendance in taking the depositions. The court immediately ordered an execution against the plaintiff. Subsequently the plaintiff appeared and moved the court to vacate the orders of allowance and recall the execution, for the reasons that the allowances were unauthorized and excessive. In the meantime the plaintiff had been compelled by the [630] sheriff to satisfy the execution. The circuit court overruled the motion to vacate, and the plaintiff has appealed. The question of the proper fees of a commissioner to take depositions was before us in the case of Watkins v. McDonald, 70 Mo. App. 357. We held in that case that his compensation was not to be limited by the fees fixed by the statute for like services rendered by a notary public or a justice of the peace, neither ought it to exceed the fees allowed a referee, to wit, ten dollars per day, and that in determining the 'question in a given case the limits furnished by these analogous employments should govern. We are not disposed to recede from this rule, although the matter is not free of difficulty under the decisions. We therefore conclude that the compensation of Mr. Earish for attendance in taking the depositions should not have exceeded ten dollars, as it is admitted that he was engaged for one day, and then only for a few hours. The allowance to Roberts as a stenographer was without warrant of law. This question was so decided by the supreme court in Schawacker v. McLaughlin, 139 Mo. 333 in a reference case. However, Earish was entitled to charge in addition to the amount above specified, fifteen cents a hundred words for writing out the deposition, which would amount to $14.85. This amount would have been allowed him, and the application of Roberts ought to have been dismissed. He owed his employment to Earish and he ought to look to him for his pay. But the order as made to the extent of $14.85 is not prejudicial to the plaintiff. It could make no difference to plaintiff whether the amount was taxed in favor of Earish or Roberts. Our judgment is that if Earish will refund ten dollars of the amount received by him, and Roberts will refund six dollars of the amount received by him, the judgment will be affirmed for the residue. Otherwise the judgment will be reversed and the cause remanded, and the costs of the appeal taxed against Earish and Roberts. All concur.