Opinion
No. 21408.
March 5, 1951.
APPEAL FROM THE CIRCUIT COURT, CLINTON COUNTY, FRED H. MAUGHMER, J.
R. H. Musser, Plattsburg, for appellants.
A. R. Alexander, Plattsburg, for respondents.
This is an appeal by defendants, Ira Pemberton and Frances Pemberton, from an amended judgment entered by the trial court in an effort to comply with the mandate of this court handed down on a prior appeal of this case, Pack v. Pemberton, 218 S.W.2d 125. That portion of the amended judgment from which this appeal is prosecuted, is as follows: "It is further Ordered, Adjudged, and Decreed, in accordance with the mandate of the Kansas City Court of Appeals, that the costs herein be and they are hereby taxed as follows: All costs accruing in the Circuit Court are taxed against respondents, John R. Pack and Elsie May Pack, and all costs of appeal are taxed against appellants, Ira Pemberton and Frances Pemberton."
The judgment of the circuit court, in the original case, was, in effect, that the injunction sought by plaintiffs, Pack, be sustained, that fee simple title to the real estate therein mentioned be vested in them, and that costs be adjudged against defendants.
Defendants, Pemberton, appealed. Our order and judgment therein was as follows: "The foregoing opinion of Sperry, C., is adopted as the opinion of the court. The judgment is affirmed, except as to that part thereof adjudging fee simple title to be vested in plaintiffs, which part is reversed."
By inadvertence our mandate purported to assess the costs against respondents. In that respect the language of the mandate was ill advised, and it has brought confusion to the trial court and to the parties. However, this appeal brings the question of costs before us again, as fully as though it were here for the first time. We may deal with it without regard to previous orders and judgments of this court, or of the trial court. We consider this appeal as merely a continuation and part of the same case that was here before us.
In an equity case we must consider it de novo, make our own findings of facts, and enter or direct the entrance of the judgment that should be entered. First National Bank of Kansas City v. Schaake, Mo.App., 203 S.W.2d 611, 615. Assessment of costs is a part of a judgment.
In our opinion, in Pack v. Pemberton, supra, we found that plaintiffs, respondents therein, did not seek to have fee simple title, to the strip of land there mentioned, vested in them, and that that portion of the judgment was not necessary to a complete disposition of the case as pleaded and submitted. We may also say that defendants did not seek such an adjudication but merely claimed the right to use the land as a roadway. That part of the judgment had no connection whatever with the claims of any of the parties, as pleaded and submitted.
The trial court rendered judgment in the case granting plaintiffs the relief prayed, and adjudging costs against defendants, but also decreed title in plaintiffs. The entire judgment was affirmed, "except as to that part thereof adjudging fee simple title to be vested in plaintiffs." Our intent was thus clearly expressed. The judgment for plaintiffs, on the pleaded issues, was affirmed. Plaintiffs won their case below, and they won on the merits of the appeal.
In Snodgrass v. Potter, Mo.Sup., 215 S.W.2d 497, 499, the decree was for defendants, who were respondents. On appeal the Supreme Court adjudged costs in favor of defendants, who won on the merits although the cause was reversed and remanded.
Our judgment should be that all costs accruing in this case, in the circuit court, and in this court, on the former appeal as well as on this appeal, be adjudged against Ira Pemberton and Frances Pemberton.
BOUR, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. All costs accruing in this case, in the circuit court and in this court, on the former appeal and on this appeal be, and they are, adjudged against Ira Pemberton and Frances Pemberton.
All concur.