Texas Bank & Trust Co. v. Teich

BLAIR, J. March 3,1926, we reversed and remanded this cause, with instructions, and adjudged all costs of appeal against appellee. Within 15 days thereafter appellee filed a motion for rehearing, which was overruled. A second motion for rehearing was filed and overruled. A motion to certify the questions involved on the appeal was filed and overruled. A writ of error to the Supreme Court was then applied for, and was refused. In neither of the motions for rehearing, nor the application for the writ of error, did the ap-pellee complain of our judgment awarding costs against her. Now, on June 10, 1926, appellee filed what is designated “Motion to Retax the Costs of the Court of Civil Appeals.” The basis of the motion is that we reversed and remanded the cause, with instructions, upon fundamental error apparent of record, and not upon any assignment or suggestion of fundamental error made by appellant in this or in the trial court, and that therefore appellee should have recovered the costs incurred in the Court of Civil Appeals. Although the motion is designated as one to retax the costs, it is in fact a complaint against the former judgment, wherein it was adjudged that appellee pay all costs of the appeal, and was a matter passed upon by the judgment of this court, and the judgment of the Supreme Court in refusing a writ of error, and which should have been complained of in the original motion for rehearing, and cannot now be readjudieated in this case. Article 1877, Revised Statutes 1925; Raley v. Magendie (Tex. Civ. App.) 116 S. W. 1198; Gulf, C. & S. F. Ry. Co. v. Jagoe (Tex. Civ. App.) 40 S. W. 187. The motion is therefore dismissed. Motion dismissed.