Morrison v. Lambert

BUCK, J. Appellant W. H. Morrison files a motion to recall the mandate of this court and to ' *150 retax costs accrued in the trial court. This cause was tried in the district court of Archer county, and the judgment entered November' 7, 1929. An appeal was prosecuted to this court, and on February 20, 1930, the transcript was filed in this court. On November 8, 1930, this court entered judgment, leaving the judgment undisturbed in part, and reversing the judgment below and remanding the cause in part. [33 S.W. (2d) 517.] Writ of error was applied for, and the writ of error - was refused by the Supreme Court. Appellant now complains of the failure to charge in the bill of costs the item of the Q. and A. statement of facts and the narrative statement of facts. In the first place, where a Q. and A. statement of facts is made, the charge for the narrative statement of facts is not properly made a part of the bill of costs. In the second place, a motion filed at a subsequent term of the Court of Civil Appeals to retax the costs, so as to include an item incurred in preparing a statement of facts, will be overruled, where it appears from the motion that such item of costs was not taxed in the district court and was not included in the bill of costs in the transcript, mandate having been issued and been filed below prior to the making of the motion, although the error in omitting the item was not discovered until after the adjournment of the appellate court. See Brady v. Cobbs & Bonner (Tex. Civ. App.) 216 S.W. 420; H. & T. C. Ry. Co. v. Montgomery (Tex. Civ. App.) 189 S.W. 350. The motion comes too late, and will be overruled at cost of appellant.