273 S.W. 978 | Tex. App. | 1925
At a former day of this court, the judgment of the trial court in this cause was reversed, and the cause remanded, and the costs of appeal taxed against appellee. Appellant has filed his motion in this court, asking that the costs of the official court reporter for preparing the statement of facts in narrative form, amounting to $62.50, be taxed as part of the costs of appeal. The bill of costs embraced in the transcript does not embrace this item. It appears undisputed, however, from the motion to retax and the answer filed thereto by appellee, as well as from the statement of facts filed, that same was prepared by the official court reporter in narrative form, and that no question and answer statement was prepared.
This motion has been held in abeyance, awaiting the answers of the Supreme Court to certified questions which were propounded to it by this court in the Pullman Company v. C. H. Hays et ux. (Tex.Com.App.)
This court, in the Pullman Company *979 v. Hays et ux. case asked the Supreme Court whether this court had the power to determine the amount of the stenographer's fees for preparing the statement of facts, where same did not appear from the bill of costs contained in the transcript. The Supreme Court stated that the question was abstract, and therefore refused to answer it. Since, however, the Supreme Court holds that, where a question and answer statement of facts has not been prepared, the cost of the narrative statement should be taxed as part of the costs, and since the amount the official court stenographer can charge for preparing a statement of facts is fixed by article 1925 of the Revised Statutes, as amended by the Acts of the Third Called Session of the Thirty-Sixth Legislature (1920), c. 47, § 1 (Vernon's Ann.Civ.St. Supp. 1922, art. 1925), we are of the opinion that, under article 1648 of the Revised Statutes, the clerk of this court is authorized to tax and collect, as part of the costs of appeal, the fee of the official court stenographer for preparing the narrative statement of facts, even though same has not been embraced in the cost bill as shown by the transcript. We think the proper practice is for the clerk of the trial court to include, in the bill of costs in the transcript, the stenographer's fee for preparing the statement of facts.
There being no question as to the correctness of the amount, appellant's motion is granted, and the item of $62.50 stenographer's fee for preparing the narrative statement of facts, which has been filed in this cause, is hereby ordered taxed as costs of appeal, and same are hereby taxed against appellee.
