Davis v. Thomas , 5 Tex. 389 ( 1849 )

Lipscomb, J.

We have repeatedly ruled that we cannot, when a judgment is brought before us for revision, look to any error or irregularity occurring subsequent to the judgment so brought up; and if there is error in the taxation of costs or in the execution, that such irregularities can only be brought before us after proceedings had in the court below for their correction. If the cleric has committed an error if the taxation of the costs, there must be proceedings and a judgment on such proceedings in the court below before we can examine and decide on such supposed errors. Either party dissatisfied can have such judgment revised. In this ease the bill of costs and the execution sent up show that the.clerk has taxed the defendant in the court below with the costs for the attendance of his own witnesses; and although it would seem difficult to understand on what authority lie could, in taxing the costs under the agreement of the parties by which the suit was dismissed, determine that such attendance was costs unnecessarily incurred by the defendant, yet, until it has been adjudicated in the court below, we have no control over what he has done.

But there is an error complained of that we can revise. In the judgment of the court, although by a fair construction it is against-the defendant as administrator for costs unnecessarily incurred, yet it orders an execution to issue. This we conceive to be error. It should have decided that if there were any such costs to be taxed they should be certified to the Probate Court, to be allowed and settled in the due course of the administration. For this error so much of the judgment as directs execution to issue must be reversed, vacated, .and annulled; and the order be so made as to direct execution for all legal costs against the plaintiff below; and as for the balance, if un necessarily ni-■curred by the defendant below, that the same be taxed and be certified to the Probate Court for allowance, and to be settled in the due course of the administration. We do not intend being understood to say that the motion for a retaxation of the costs must be made before they are so certified; but if made •in a reasonable time after, it can be revised and corrected by the court below.

. Ordered accordingly.