Peck v. Hunter , 300 S.W. 27 ( 1927 )

SHORT, J.

The original motion for rehearing in this case was overruled without written opinion, our original opinion being reported in 292 S. W. 1101, wherein the judgment of the Court of Civil Appeals was reversed, and that of the district court affirmed. The judgment of the Court of Civil Appeals is reported in 289 S. W. 106.

The defendant in error, Hunter, recovered a judgment against the plaintiffs in error in the district court of Wilbarger county on January 7, .1926, for the sum of $4,459.-57, together with all costs expended. From this judgment the plaintiffs in error appealed to the Court of Civil Appeals, where the judgment of the district court was in all things affirmed, except that part allowing the plaintiff in error Peck, as an offset, the sum of $2,097.83; that court holding that Peck was not entitled to offset Hunter’s claim against the partnership with this claim. The plaintiffs in error successfully prosecuted a writ of error to the Supreme Court, with the result already stated. In writing up the judgment, all the costs incurred in the district court and in the Court of Civil Appeals, as well as in the Supreme Court, were taxed against the defendant in error, Hunter, and with this action he was dissatisfied, and has been allowed to file a second motion for rehearing.

To the extent that the motion deals with the costs in the case, it is granted, since it appears to us that the defendant in error, Hunter, not having appealed from the judgment of the district' court rendered in his favor for a certain amount, and that judgment having been affirmed by the Supreme Court, both as a matter of law and of equity, he should not be held liable for the payment of the costs in these courts, but that the plaintiffs in error should be. The plaintiffs in error having procured in the Supreme Court the judgment rendered, reversing the judgment of the Court of Civil Appeals, we think the defendant in error, Hunter, should be taxed with all the costs incurred in the Supreme Court, the remainder of the costs to be taxed against the plaintiffs in error.

The other matters mentioned in the second motion for rehearing are not discussed by us, for the reason that the Supreme Court has no jurisdiction of them. The defendant in error, Hunter, while complaining of these matters in the lower courts, has not sought by an application for a writ of error to the Supreme Court to have the action of these courts reviewed as to these matters.

We therefore recommend that the second motion for rehearing, in so far as it relates to a retaxing of the costs, be granted, and, as to the other matters, that the same be denied, and that judgment be entered setting aside the original judgment as to taxation of the costs, and that judgment be entered in accordance with this recommendation.