Texas Employers' Ins. v. Price , 291 S.W. 287 ( 1926 )

On Motion to Retax Costs. Appellee moves to tax the costs of the appeal against the appellant because the case was reversed upon fundamental error not raised in the court below.

Article 1870, R.S. 1925, taxes the costs of appeal against the appellee in any case reversed. The statute makes no exception, in which respect it differs from article 2066, relating to district and county courts, which authorizes the court, for good cause to be stated on the record, to adjudge the costs otherwise than as provided in that chapter. Article 1870 specifically directs that the appellant shall be entitled to an execution against the appellee for costs occasioned by the appeal. It makes no exception in cases reversed upon fundamental error, not raised in the court below. The courts, however, have ingrafted an apparent exception in cases where unimportant modifications of the judgment have been made respecting minor errors, which could have and, no doubt, would have been corrected in the court below, if called to the attention of that court. See 1 Sayles' Texas Civil Practice, § 739. Helm v. Weaver,69 Tex. 143, 6 S.W. 420; Lee v. Welborne, 71 Tex. 500, 9 S.W. 471; McDaniel v. Martin (Tex.Civ.App.) 25 S.W. 1041; Chapman v. Bolton (Tex.Civ.App.)25 S.W. 1001.

The case of Mercedes Produce Co. v. Roddy (Tex.Civ.App.) 249 S.W. 249, cited in the motion, is an application of the doctrine of those cases.

Commercial Credit Co. v. Moore (Tex.Civ.App.) 270 S.W. 582, supports appellee's motion, but the broad rule there announced, taxing the costs of the appeal against the plaintiff in error simply because the case was reversed upon a fundamental error not raised in the trial court, is in conflict with the statute, and, in our opinion, goes too far. The Roddy Case, which it cites in support of its ruling, contains some broad statements supporting the same, but, as above pointed out, the Roddy Case is merely an application of the exception ingrafted by the courts upon the statute.

We are therefore of the opinion the motion to retax the costs of the appeal against the appellant should be overruled.