Bradshaw v. Davis

Decided July 1, 1852

Texas Supreme Court · decided 1852-07-01

A judgment for coste merely, without words showing that the subject-matter of the controversy has been disposed of, is not final judgment, and there can be no appeal from it. (Note 71.) Appeal from Harrison. The appellees filed their petition, praying that the proceedings for the collection of a judgment recovered by the appellant against the appellees might he restrained, and that ou final hearing of the cause the. judgment might be perpetually enjoined. The judgment complained oí was set aside, and on new trial being awarded, a verdict was found for the •appellees, who were defendants in the court below. On tiie return of the verdict it was adjudged that the defendants should have and recover of the plaintiff (who is the appellant here) the costs of the original suit since the new trial granted and all costs of the proceedings on the petition for injunction. A motion for new trial was overruled, and plaintiff appealed. Note 71. — Holt v. Wood, 23 T., 474.

Cited by 5 later decisions — most recently December 1944

5 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1852-07-01

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Hemphill, Ch. J.

¶1The errors assigned had been examined with a considerable degree of attention, and conclusions upon them attained, when it was ■discovered that the judgment entered in the cause was not final, and that consequently the appeal was prematurely taken. The judgment upon the verdict should have been that the original petition be dismissed, or that the plaintiff take nothing by his suit, or that the defendants go hence and be discharged without day, &e., or expressions of equivalent import should have been used, •showing that the subject-matter of the controversy had been determined, and that in favor of the defendant. (Warren v. Shuman, 5 Tex. R., 441; Hanks v. Thompson, Id., 6.)

¶2The recovery of costs is but an incident to the principal judgment; and to enter j udgment for the costs alone is to substitute the incident for the principal. The appeal is dismissed.

¶3Appeal dismissed.