ON MOTION TO TAX COSTS* ___ S.W.2d ___* Note: Motion to tax costs filed at September Term, 1939, November 3, 1939. The opinion in the above consolidated causes (in certiorari) was handed down at the May Term, 1939, and is reported in344 Mo. 1003, 130 S.W.2d 491. The purpose was to quash the record and opinion of the Kansas City Court of Appeals in Nelson v. Massman Construction Company et al., 120 S.W.2d 77. The opinion and judgment in cause No. 36,392 quashed, in part, the opinion and record in the Nelson case (120 S.W.2d 77) and the opinion and judgment in cause No. 36,396 quashed the writ issued in that case. The Massman Construction Company duly filed a motion to tax costs in both of the certiorari causes, Nos. 36,392 and 36,396.
By the motion in No. 36,392, the Massman Construction Company asks that the docket fee and the costs of printing the abstract be *Page 1017 taxed against Thomas E. Deacy who was the beneficiary of the judgment and opinion of the Court of Appeals. By the motion in cause No. 36,396, the Massman Construction Company asks that the cost of printing what is called a counter-abstract be taxed against Mitchel J. Henderson, who was the relator in that cause.
We will first consider the motion in case No. 36,392. Thomas E. Deacy, by his counsel, has filed suggestions in opposition to the motion to tax costs in No. 36,392. It is suggested that the certiorari proceeding, instituted by the Massman Construction Company, was an original proceeding, and was against the judges of the Kansas City Court of Appeals, and that he, Deacy, was not a party to such proceeding, and that in the situation this court has no power to tax costs against him. No authority is cited in support of the suggestions. Reference, however, is made to Section 1028, Revised Statutes 1929 (Mo. Stat. Ann., p. 1310). This section, among other things, provides that "if the abstract filed by the appellant or plaintiff in error be sufficient and correct, a reasonable charge therefor shall be taxed against the respondent or defendant or defendant in error, if he be the losing party." It will be observed that Section 1028 is no authority for taxing costs in a certiorari proceeding, since this section has reference only to appeals and writs of error. Certiorari, in the Supreme Court, to quash an opinion of a Court of Appeals, while usually considered as an original proceeding, is not entirely original as distinguished from the termappellate. "Certiorari is appellate in the sense that it involves a limited review of the proceedings of an inferior jurisdiction; it is original in the sense that the subject matter of the suit or proceeding which it brings before the court is not reinvestigated, tried and determined on the merits generally, as on appeal at law or writ of error." [11 C.J. 90.] In certiorari to quash an opinion of a Court of Appeals the parties are not the same as the parties to the cause, or action determined by the Court of Appeals. Such proceeding (certiorari) is a new, distinct, and separate action from that decided by the Court of Appeals, and is not a continuation of the original suit or action decided by the Court of Appeals. [State ex rel. Jacobs v. Trimble et al., 310 Mo. 150, l.c. 155, 274 S.W. 1075.]
Section 3, Article VI of the Constitution provides: "The Supreme Court shall have a general superintending control over all inferior courts. It shall have power to issue writs ofhabeas corpus, mandamus, quo warranto, certiorari and other original remedial writs, and to hear and determine the same." Section 8 of the Amendment of 1884 provides: "The Supreme Court shall have superintending control over the courts of appeals bymandamus, prohibition and certiorari." Under these provisions and in a proper case, the Supreme Court has the power to quash the record and opinion of a Court of Appeals. [State ex rel. Curtis v. Broaddus et al., 238 Mo. 189, 142 S.W. 340.] *Page 1018
Sec. 1249, Revised Statutes 1929 (Mo. Stat. Ann., sec. 1249, p. 1473), provides that "in all cases where either party shall sue out a certiorari upon any judgment where the same shall be allowed by law, the successful party in the superior court shall recover costs in both courts." What is now Section 1249 was enacted in 1835, Revised Statutes 1835, page 129, section 15. There were no court or Courts of Appeals, as we now have, when Section 1249 was first enacted. Then the only appellate court, superior to the circuit court, was the Supreme Court, but what is now Section 3, Article VI of the Constitution, set out, supra, was then a part of the Constitution. Section 1249, Revised Statutes 1929, is a part of Article XX, Chapter 5, Revised Statutes 1929, relating to costs, and for the most part, the article pertains to costs in the circuit court, but there is nothing in the article that would suggest that it is restricted to costs accruing in the circuit court. On the contrary, Section 1253 of the article provides for the recovery of costs in appeals and writs of error. Section 1249, providing for costs in certiorari is general in its scope and therefore not restricted to any particular certiorari proceeding.
In Hickman v. Hunter, Dist. Judge, 159 Iowa 201, 140 N.W. 425, it appears that Hickman brought suit against William Bunch and wife. In that case the district court rendered a judgment against Hickman for $350 on a counterclaim which was filed in the cause after Hickman had dismissed his case. Hickman commenced certiorari in the Supreme Court and against the district judge who rendered the judgment to annual the judgment on the counterclaim in the district court. The judgment was annulled, and on the question of costs the court said: "It is claimed by plaintiff (Hickman) that the costs of this proceeding (certiorari) should be taxed to the defendants in the court below, William Bunch and Mrs. William Bunch. The defendant judge is, of course, not liable for costs. The defendants Bunch are not perhaps, in one sense, parties to this proceeding; but the attorneys for the defendant judge are the same attorneys who appeared in the court below for the defendants, Mr. and Mrs. Bunch, and they (the attorneys) are in this court seeking to sustain the judgment in favor of the said defendants. Under such circumstances, it has been held that they are the real parties in interest, and that the costs of this proceeding should go against them," citing Tiedt v. Carstensen, 64 Iowa 131, 19 N.W. 885, and 6 Cyc. 837.
State ex rel. Snow Steam Pump Works et al. v. Homer, Judge (banc), 249 Mo. 58, 155 S.W. 405, was in prohibition to prohibit a circuit judge from proceeding in a cause. There language was used (249 Mo. l.c. 76) which we think quite pertinent here:
"It is so universally the practice in this State that the counsel for the prevailing party nisi represents the judge upon whom they have prevailed in the ruling and represent him because of the interest and employment of their clients, that we can well judiciously (judicially) *Page 1019 know this fact. In the case at bar the very lawyers who represent relators in this suit represented them as defendants in the courtnisi, and represented the judge in the mandamus suit. When representing the judge we have no doubt that they were acting for and in behalf of their clients and were at the time and in the mandamus case, in the pay of their clients, these relators. Relators were therefore real parties to the mandamus case, although not parties of record. A party to a proceeding does not have to be a party to such of record before being bound. His conduct in the case may make him such a party, though not of record, as to make the judgment res adjudicata. Such is the relation here, and for this reason these relators are estopped by the judgment in the mandamus case, and cannot have the relief now sought in the instant case."
We rule that Deacy was the interested party respondent in the certiorari cause No. 36,392, and the fact that his name did not appear of record as a party respondent, should not make him immune from liability for the costs here sought. It must be conceded that he appeared, by counsel, in this court in said cause, and sought to uphold the opinion of the Court of Appeals. We think that the docket fee, $10, the marshal's fee, $18, and a reasonable amount, $60.75 for printing the abstract in cause No. 36,392 should, under Section 1249. Revised Statutes 1929, be allowed and taxed against Deacy, and it is so ordered.
By motion to tax costs, the Massman Construction Company asks that costs be taxed against Mitchel J. Henderson in the certiorari cause No. 36,396, for printing what is termed a counter-abstract. Henderson was relator in cause No. 36,396, the writ in which was quashed. Henderson printed in his abstract all the necessary record. The so-called counter-abstract is a copy of the abstract in the Nelson case (120 S.W.2d 77) in the Court of Appeals. That abstract was among the files in the return made by the Court of Appeals in response to the certiorari writ, and it was wholly unnecessary to reprint it.
The motion to tax costs for printing the so-called counter-abstract should be overruled, and it is so ordered.Hyde and Dalton, CC., concur.