Paul v. Minneapolis Threshing Machine Co.

ON MOTION ROE EEHEAEING.

BROADDUS, J.

The appellant contends that under the finding of the court the defendant was entitled, under the prayer for general relief, to recover compensation already paid plaintiff, and to withhold that unpaid. That part of the opinion upon which the argument is founded is as follows: “It must be admitted that if defendant’s answer and cross-bill allege such affirmative facts as would entitle it under the evidence to have the court enforce the rule laid down herein, that plaintiff is not entitled to recover, for the reason of his discharge for cause, then the finding of the circuit court is erroneous.” With the contention of defendant that, “courts of equity will give to the party such relief as the facts alleged and proven entitle under the prayer for general relief, and even when he prays for relief to which he is not entitled,” we make no dispute, for the rule is too well settled for controversy. But the difficulty with the defendant’s cross-bill is that it does not warrant the relief insisted on, to have plaintiff return to defendant compensation already received and its right to retain that unpaid:

It is insisted that as this is an equity suit (which is not denied), therefore defendant was grievously wronged in the premises. On the contrary, it is most certain that defendant *657is not asking equity. In this case the defendant found itself confronted by an account stated, which it desired to open up so that the same might be purged of all errors and false charges, and to accomplish that end, a commendable one, it appealed to the conscience of a court of equity and offered, as it must have done or its petition would not have been granted, to do equity; that is, if the accounting upon the whole case should show that it was indebted to the plaintiff it stood pledged to pay it — whatever was found due. Under its cross-bill the court granted its prayer, went into the accounts of the parties, corrected all errors and false charges and rendered judgment against the defendants for what was shown to be due him. It seems that after having had a court of equity to set aside the account, it is not content, but goes further and asks the unconscionable relief that all the compensation that has heretofore been paid to plaintiff be returned, and all that which remains unpaid withheld. It is a maxim well understood and as old as equity jurisprudence, that he who asks equity must do equity. 1 Story’s Equity, section 64; Kline v. Vogel, 90 Mo. 239; Plum v. Kansas City, 101 Mo. 525; Woodard v. Mastin, 106 Mo. 324; Steckman v. Harber, 55 Mo. App. 71; Henwick v. Supply Co., 61 Mo. App. 454. The appellant obtained all the relief it was entitled to in a court of equity and is not in a condition to complain. Appellant further contends that the court overlooked the facts pertaining to its motion to retax costs. The record shows that the judgment was rendered on the sixth day of the April term, 1899, which contained a judgment also for costs in favor of the plaintiff. It also appears that the order taxing the fees of the referee and stenographer was made on the twenty-second day of April, 1899, from which order the defendant appealed. But in defendant’s motion for a new trial no exceptions were made to the judgment of the court awarding costs in favor of the *658plaintiff, and as a matter of course this court can not inquire into the correctness of the action of the court below in that respect. The defendant contends, however, as the order taxing the referee’s and stenographer’s fees was not made until after it filed its motion for new trial, it was an impossibility to have included in its motion the error of the court in taxing said costs against defendant. But the order taxing these fees was not a judgment for costs; it was merely the act of the court determining what costs should be allowed and when allowed became and was a part of the original judgment for costs.

If, however, these fees were illegal and not a part of the costs in the case, defendant could be heard; but that question is not raised. The question raised here is that the judgment for costs should have been for defendant, and that we believe to be true; but the attention of the trial court was not called to the errar in the defendant’s motion for new trial, and, therefore, can not be questioned on appeal.

The eases cited by appellant have no application here, for they apply merely to errors and omissions in the taxation of costs and not to judgment for costs in the first instance.

The motion for rehearing is overruled.

All concur.