*1 duty salvage he can in order minimize onerous what damages. undisputed shows In our evidence case highest at- placed upon land involved can be value gravel. only case to the issue in the value tributed charge jury gravel permitted purposes. of the court ignore any gravel of the value of which would evidence after the constructed. be lost line was remanded for a new trial. This case should be reversed and 30, Opinion April delivered 1958.
Rehearing overruled June 1958. Mrs. Jim Hammonds Et Al v. T. Et C. Hammonds Ux A-6715.
No. Decided 1958. April Rehearing June 11, overruled Series *2 Storey, Storey, Donaghey Sheridan, Vernon, & of Ben P. Ayres, Floydada, of Cofer, and & and John D. of Cofer Cofer Austin, petitioners. for Stapleton, J ohn Floydada, Wagstaff, of R. M. J. H. Hand and Wagstaff, Harwell, Abilene, Alvis Pope, respondents. & opinion Mr. Justice Culver delivered the of the Court. In litigation parties settlement betwen these that had
put in land, issue the petitioners, title to tracts of several Mrs. al., pay Jim et Hammonds court costs and During conformity. course of this was entered plea litigation pending and an order from appointed petitioners, privilege, application the Court on interlocutory appealed order receiver. from gave supersedeas corporate surety bond on which and ap- premium had, subsequently $1,000. Because we plea of receiver, pointment ordered the of the reversed and 362.) sustained, privilege (155 Texas trial court Appeals reversed the order Court Civil 272). appointing the receiver. respon- County, request on
The District Clerk of Foard dents, premium as on the cost an item costs Floyd transcript the District bill forwarded the *3 County. knowledge fact that the
Petitioners had actual of the no the premium as after rendition bond had been taxed costs until district court judgment. They of the then filed in the strike from the cost bill their motion to retax the costs and to appealed premium $1,000 and from the the item of the of bond Appeals overruling af- order that motion. The Court of Civil holding that this instance the in- firmed 2d in proper of court costs premium clusion the as a item of bond expenses of re- equitable was an rule that matter under the wrongfully by party ceivership paid who obtained should be the appointment receiver, to strike was the of the that the refusal that and no within the sound discretion of court abuse the discretion was shown. Appeals error and its think the was in
We Court Civil judgment will be reversed. given supersedeas a of sus
The of a bond condition cost think, not, pending appointing a we an an receiver is order expense receivership equitable it nor is an matter as such usages any equity. to invoke rules or judg appellant suspend an desires the execution of Where to pending may by provide ment the that do so rules he giving approved by the clerk at amount bond be in least the judgment, the applicable interest costs. Rule This rule and T.R.C.P. brought equity at is cases in or law. The whether Judge County that the District Foard trial court found respondents surety formally a the to make in ordered bond given weight by supersede order to and this fact is some the premium Appeals of Civil in conclusion that its reading of the rule rightfully Clearly taxed as costs. from a requirement. The judge authority had no to make such duty de- approval province is clerk and the within the upon initially determine whether volves him and him alone “good Additionally, point out bond and sufficient.” we supersedeas provides sufficiency that Rule 365 of a respondents, by appellate is reviewable courts and the bond alleged doubt, no had could obtained relief from the have order good willing so desired and had been to furnish able personal and sufficient with sureties. bond Pendery Refining Co., App., v. Panhandle Texas Civ. 141, T.R.C.P., upon
S.W. ing 766 and Rule are relied in the hold- that the trial court did abuse its discretion in refusing the motion to retax costs and in strike the premium therefrom. But neither that case nor the rule has anything to do with the determination of what items properly They costs. on both bear the discretion of allocating the court in parties. the costs ques- between the upon tion does not turn the trial discretion rather court’s upon propriety taxing premium the bond as an element of court costs. only closely point Texas case party either cited jen
Brandt
Kluge,
&
Manney,
App.,
Inc. v.
Texas Civ.
n.r.e., holding
premium paid
replevy
*4
is
proper charge
bond
a
damages
not
ordinary
as
and that
the
expenses
by
party
incurred
prosecuting
defending
a
or
suit
cannot be
damages
by way
recovered either as
or
of court costs
in the
usages
statutory provisions
absence of
equity.
or
Pecuniary
by
loss
a party
sustained
in the
of a lawsuit
defense
does not
damage
may
constitute
for which he
recover. Vance v.
Lindsey,
The of costs is a ministerial act of the clerk if erroneous, upon proper by motion will corrected be the Court. Reaugh Exploration Co., 322, v. McCollum 140 Texas 167 S.W. 727; Cox, 253, Patton v. Texas 97 77 S.W. pléa petitioner is estoppel.
There here no asserted The agreed by pay prepared to the court costs and not as the cost bill County. Respondents Irrigat- the Clerk Foard cite Beaumont ing Laune, App., 514, v. De Texas for the Co. Civ. 173 S.W. proposition by prepared presump- cost that the bill the clerk tively judgment correct and as a stands until the trial court improper. We adjudged as
upon the items so taxed motion has respon- say, to reject proposition that is not not this do final and implies, the trial court that the action of dent appellate by courts. corrected the not reviewed and be Ry. Gulf, Co. relevancy & F. perceive C. S. do the We not Rail Tadlock, There the App., 2d 428. Texas Civ. v. re- to a motion Company appealed the road from tax the costs filed together provided with her costs “plaintiff after an should herein incurred agreed judgment. The recover the * [*] sum of *.” The $1,500 judgment railroad * * * judgment it liable should be contended that under successfully had that it the of a former of the cause costs the evi prosecuted. Appeals concluded that The Court of Civil finding the support by trial court to the was sufficient to dence In our question of fact. contrary. the the was one In cited case namely, law, the question whether case the is reduced to one of we question properly On this premium was costs. petitioners. hold with Appeals is judgment reversed of Civil the instruction to
the trial with cause remanded to the court grant petitioner’s costs in accord with motion and retax expressed. the views herein
Opinion April 30, 1958. delivered
ON FOR REHEARING MOTION opinion of the delivered the Court. Mr. Justice Culver opinion say our we failed discuss in entry prior by question of the consent waiver of errors thought had, least, implication. They judgment. we at We Wagner Warnasch, cite v. 156 Texas operates error and the effect that consent excuses parties, pro controversy end all but we think that between parties position has no force under the circumstances here. costs, upon payment and in the absence of presumed anything contrary con it must *5 proper rightfully templated the costs were taxable. say effect of further that the our decision judgment, part not be done set aside of the consent agree parties. not except with the consent of all We do not with that contention. The consent modified in any pay the costs respect. petitioners are bound to agreed, expense not of court. any that are costs items pay that, petitioners Respondents say since suit, incurred costs include the costs costs of those would Again disagree. appeal. The costs of this we must against losing respondents, pro- party, be taxed will rehearing generally by the rules. The motion for is over- vided ruled. Opinion delivered June 1958.
Felipe Bernal Et Ux v. Mrs. Al Seitt Et Wallace
No. A-6740. Decided May 21, 1958. Rehearing overruled June Series