5 Tex. 389 | Tex. | 1849
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.
. Ordered accordingly.
