Farquhar v. William Hendley & Co. , 24 Tex. 300 ( 1859 )

Bell, J.

This cause was tried in the District Court for Washington county, at the Fall Term, 1856. Upon that trial, a jury found a verdict for the plaintiffs, William Hendley & Co., for $1050.35. This amount was less than was due upon the note sued on, the jury having made a mistake in the calculation of interest. Upon motion, and without recalling the jury, judgment was entered for a sum larger than that found by the jury in favor of the plaintiffs. That judgment, upon writ of error, was reversed by this court, at the October Term, 1857; and the cause was remanded to the District Court for another trial. The cause came on again for trial in the District Court, at the Fall Term, 1858. Judgment was rendered for the plaintiffs for their debt, “ together with all costs in this behalf expended.” When execution was issued upon this judgment, the clerk of the District Court taxed the costs upon the writ of error to this court, and the cost of the transcript of the record, which was brought up to this court, against the defendants.

It is now alleged as error, that the judgment below was for “ all costs,” which resulted in the erroneous taxation, against the defendants below, of the costs of the former writ of error to this court. The judgment below is in the usual form, and cannot be understood to intend what it does not express. The judgment is for the plaintiffs, for their debt, and “ all costs in this behalf expended.” This will not be taken to be a judgment for the plaintiffs below, for the costs adjudged against them in this court, upon the former writ of error. It was not proper for the district clerk to tax the costs that had been incurred in this court, against the defendants in the court below.

But there is no error in the judgment of the District Court, and the remedy of the defendants below, was a motion in the District Court, to re-tax the costs. The execution, which is brought up as a part of the record, in order to show the erroneous taxation of costs, shows also that a credit has been entered on the execution, by the plaintiffs below, for the amount of the costs, improperly included by the clerk, in the execution. The judgment of the court below is affirmed, with damages for the delay.

Affirmed with damages.