114 S.W.2d 914 | Tex. App. | 1938
This appeal involves the issue of taxing court costs. Appellants herein were the appellants in Wiggins v. Hensley,
It is, of course, settled law that a court cannot, on mere motion, modify a final judgment by readjudicating the costs, after adjournment of the term at which the judgment was entered. Texas N. O. R. R. Co. v. Owens, Tex. Civ. App.
The taxing of costs by the clerk of a court is a mere ministerial act. Where there has been no appeal, his mistake in taxing costs may be corrected by the trial court upon proper motion, after the close of the term of court at which judgment was entered. Patton v. Cox,
In Archer v. Cole, supra, the case chiefly relied on by appellants, there had been no appeal of the case, and the opinion pointed out that the cost bill complained of was not delivered to the complaining party until after the close of the term of court; in other words, he proceeded with reasonable diligence to seek relief from the improper charges. It is our conclusion that, where a party to an appeal fails to seek relief from items of cost improperly taxed and brought forward in the transcript on the appeal, he thereby waives his right to complain; and that a motion made in the trial court, after termination of the appeal complaining of such items of cost for the first time, comes too late.
The judgment of the trial court is affirmed.