Tittman v. Thornton
Tittman v. Thornton
Opinion of the Court
— The defendants on this appeal challenge the accuracy of the computation of interest made against them by the court in ordering the distribution of funds upon final decree, and also the legality of certain costs taxed against the funds. The facts-upon which the controversy arises are as follows:
Michael Carroll obtained a judgment in the state of Iowa on June 16, 1881, against John Thornton for $4,499 damages and $29.45 costs, the judgment bearing six per cent, interest. He thereafter instituted proceedings in equity in the circuit court of the city of St. Louis to subject to the payment of this judgment the annuities arising from a certain fund held by the-
On July 20, 1892, Thornton and Duggan appeared by attorney, and moved the circuit court to enter satisfaction of the decree on the ground that the same had been fully paid by the annuities paid into court by Kenrick prior to that date. They also moved to retax the costs in the case, on the ground that they were excessive, illegal and unauthorized by law, the motion, however, specifying no particular items of cost which
Upon the hearing of these motions the following facts appeared in evidence. The defendant Kenrick had paid into court, between the date of the institution of the suit and its final determination in January, 1892, the aggregate sum of $7,200. The mandate of the supreme court affirming the judgment was filed in the clerk’s office of the St. Louis circuit court on January 16, 1892, whereupon the clerk at once paid to the plaintiff $6,704.05, retaining the sum of $495.95 as costs. If the taxation of the costs was correct, the account '.between the plaintiff and defendants under the decree ¡at the date of the motion, July 20, 1892, showed an ■unpaid balance of $553.20, as will appear from the following statement:
Judgment, January 26, 1888.................................$6,323.19
Interest 6 per cent, to January 16, 1892....................... 1,507.03
Total.........................................$7,830.22
Add costs as finally taxed "by the court ....................... 491.65
$8,321.87
Deduct payment into court up to January 16, 1892...............7,200.00
$1,121.87
Add interest from Januaiy 16 to July 1, 1892................... 31.33
Due July 1, 1892........................................,....$1,153.20
Deduct payment made July 1, 1892........................... 600.00
Balance due July 1, 1892............................... $553.20
It will be thus seen that, at the date of the filing of the motion, even'if the entire costs were rejected, there was still a balance due on the judgment to the plaintiff, and the defendants’ motion to enter the same satisfied was properly overruled.
On that part of the case having reference to a re-taxation of the costs, the record discloses the following facts: The defendants’ motion, as above seen, ■challenges the taxation of costs generally on the ground that they were excessive, illegal and unauthorized by law. The motion does not point out any item of the ■costs taxed, which are thus challenged. We have decided in Haseltine v. Railroad, 39 Mo. App. 434, that the taxation of the costs made by a clerk is prima facie correct, and that, where a fee bill is challenged on any other ground than the one that the costs are not taxed in conformity with the judgment, or that items are taxed ■as costs which are not taxable as costs at all, the motion must specifically point out the objectionable items, both for the protection of the clerk and the party claiming the costs.
Now in this case all the costs were taxable against the defendants; hence the costs were taxed in con
The appellants are mistaken in the position that the burden of proof rested with the respondent to show the validity of this taxation. The clerk’s taxation in favor of third parties necessarily makes a prima facie case. It is only where an officer taxes costs in his own favor that he assumes the burden of proof to make his-claim good, when it is challenged by motion to re-tax the costs.’ Miller v. Muegge, 27 Mo. App. 670. The appellants in this case should have given affirmative-evidence that the costs taxed against them were excessive. In the absence of such evidence, they had no right to complain of the action of the court in overruling their motion. In fact, as to the bulk of the costs challenged, the court would have been justified in overruling the motion because it was not specific enough.
the judgment is affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.