Hanson v. Ponder
1928 Tex. App. LEXIS 1452
Tex. Comm'n App.
1928
Check Treatment
NICKELS, J,

Judgment on verdict instructed in favor of all defendants was rendered against Hanson in the trial court. Upon his appeal, the judgment was affirmed (March 2,1927) by the Court of Civil Appeals, 293 S. W. 219. Upon writ of error allowed, the judgments of both courts were reversed, as to all defendants in error except Sumner-Sollitt Company, and the cause was remanded by the Supreme Court November 30, 1927. 300 S. W. 35. Motions for rehearing were overruled March 7, 1928. (Tex. Com. App.) 3 S.W.(2d) 426.

In the bill of costs certified by the district clerk and included in the transcript appears an item “Statement of Facts — $140.” The judgment of. the Court of Civil Appeals includes a decretal that Hanson and sureties “pay all costs * * * expended and incurred,” etc.

Prima facie at least the item was properly taxable (Pullman Co. v. Hays [Tex. Com. App.] 271 S. W. 1108) and included within the adjudication made by the Court of Civil Appeals. It is a matter, therefore, for adjudication by the Supreme Court. Hanson was the moving party on appeal, and it became his duty to procure the statement of facts and to pay or become liable therefor in the first instance. In our opinion the item should be taxed against the defendants in error, except Sumner-Sollitt Company, and we recommend that his motion therefor be granted.

GREENWOOD and PIERSON, JJ.

Since an examination of the record discloses that the parties agreed to a stenographic report of the evidence in narrative form, and that the amount paid therefor is what hás been taxed as costs, the motion to retax is granted (Irving v. Ft. Worth State Bank [Tex. Com. App.] 276 S. W. 899), and the item of $140 is ordered taxed against defendants in error, except Sumner-Sollitt Company.