Mann v. Warner

Philips, P. J.

In January, 1885, there was a suit *579 pending in the Daviess circuit court, wherein the respondent was defendant and the appellant was plaintiff. The defendant served notice making tender to plaintiff therein of ten dollars in settlement of the claim.

This notice was served upon the attorney of record of the plaintiff. At the trial of the cause, during the • next February term of said court, the plaintiff recovered judgment for the sum of five dollars only against the defendant. As the sum recovered was less than the amount so tendered by the defendant, he claimed that all the costs should be taxed against the plaintiff, which accrued subsequent to the date of the tender. The court accordingly adjudged, “that plaintiff have judgment against the defendant for the sum of five dollars, and it is further adjudged by the court that all cost accruing since Januuary 17, 1885, be taxed against plaintiff,” etc. After the adjournment of that term of court the plaintiff gave notice to the defendant that, at the next term of court, he would move the court to re-tax the costs therein. The parties appeared accordingly at the term so named, and the plaintiff made his motion. The grounds of this motion were that the notice of tender served by defendant in the original action, was served on plaintiff’s attorney, and not on the plaintiff personally, and, therefore, the court improperly adjudged the costs as aforesaid against the plaintiff. This motion the court denied, and from this action of the court the plaintiff prosecutes this appeal.

I. The contention of appellant is that the notice of the tender, or proposed compromise should have been served on him in person to warrant the court in awarding costs as it did. But I take it that the controlling question on this appeal is, did the circuit court, on mere motion, at a term of court subsequent to that at which the judgment was rendered, have the power to revise that judgment and re-tax the costs differently %

There can be no question, under our statute and practice, of the power of the circuit court, on motion, at a term subsequent to that at which judgment was ren *580 dered, to -re-tax the costs. State ex rel. Clinton County v. The H. & St. Joe. R. R. Go., 78 Mo. 575 .

But it must be kept in mind that the statute authorizes this, as indicated in the opinion in the case supra, in a case where the duty of taxing the costs devolves in the first instance upon the clerk of the court, a function performed by him ministerially after judgment is rendered, and, usually, after the final adjournment of the court.' It applies to the instance where the clerk, in the performance of such ministerial act, has, through mistake, inadvertence, or misconception, and the like, omitted or included some proper or improper item of costs against the party complaining. The law in such case recognizes the right of the complainant to have the judgment of the court on this imposition; and permits the matter to be presented for review in the summary proceeding by motion.

Had the clerk under the judgment in this case improperly taxed some item of cost not within the purview of the judgment, or not allowable by statute, as costs, the plaintiff, by motion, could have had the execution or fee bill corrected by re-taxing the costs, so as to rectify the error of the clerk.

But such is not this case. No such imputation is made against the action of the clerk. There is no pretense that the costs complained of do not come within the terms of the judgment of the court. On the contrary, the question as to who should pay this cost, was the very matter brought to the attention of the circuit court, when the cause was being adjudicated on its merits, and was-solemnly determined and adjudged by the court to be taxed against the plaintiff. The clerk of the court had no discretion as to the party against whom he shonld issue the execution or fee bill for this cost. The plain object and effect, therefore, of the proceeding now under review, is to have the circuit court at a subsequent term, re-consider its solemn judgment, and make a different award as to the party who shall pay the costs. The bare statement of the proposition carries on its face its inad *581 missibility. No rule of law and practice is better settled than that where final judgment is rendered in a cause, if it be erroneous, the court may, during the term, correct it; for during the term the cause remains in the breast of the court. But after the lapse of the term the control of the court over the matter is at an end. It has no power to vacate its solemn judgment and make another adjudication at a subsequent term.

If the court erred in the award made respecting the costs, the plaintiff’s remedy was by motion during the term, within four days, for a new trial, and if the court refuse to correct its error it would have invited an appeal or writ of error. Ashby v. Glasgow, 7 Mo. 320 ; Hill v. City of St. Louis, 20 Mo. 586 -7; Wilson v. Boughton, 50 Mo. 17 .

The circuit court, therefore, properly overruled the motion, and its judgment is affirmed.

All concur.