Scott v. Burton

• Citation: 6 Tex. 322
• Parties: SCOTT v. BURTON.
• Decision Date: 01 January 1851
• Court: Supreme Court of Texas

6 Tex. 322

SCOTT

v.BURTON.

Supreme Court of Texas.

1851.

The form of the final judgment is immaterial, but in substance it must show intrinsically and distinctly, and not inferentially, that the matters in the record have been determined in favor of one of the litigants, or that the rights of the parties have been adjudicated. Therefore a judgment that the defendant recover his costs without an order that the plaintiff take nothing by his suit, or some order equivalent thereto, is not a final judgment, and an appeal from such a judgment must be dismissed at the cost of the appellant. (Note 58.)

Appeal from Houston. Suit on a promissory note. Verdict for the defendant, and judgment that the defendant recover his costs.

S. A. Miller, for appellant.

Ochiltree & Jennings, for appellee.

HEMPHILL, Ch. J.

This suit was brought on a promissory note. The jury found for the defendant, and judgment was entered that he should recover his costs in that behalf expended. The cause has been argued, and an opinion on the points discussed was in course of preparation when it was discovered that no final judgment had been entered.

That the defendant should recover his costs is not a judgment which determines the matter in controversy for the defendant. The jury had found in his favor, or, in other words, that the plaintiff was not entitled in law to a recovery, and the judgment following the verdict should have decreed that the plaintiff take nothing by his suit, and that the defendant go thence without day, or be discharged from his attendance on the court, and that he recover his costs, &c. The form of the judgment is immaterial, but in substance it must show intrinsically and distinctly, and not inferentially, that the matters in the record had been determined in favor of one of the litigants, or that the rights of the parties in litigation had been adjudicated. The costs are regulated by statute, and are an incident or appendage of the judgment, and generally are recoverable by the victor in the contest. But as an incident they cannot be substituted for the principal, and a judgment for their recovery is not a decision of the matter at issue, and it is therefore no such final judgment as can by law come within the revisory power of this court.

In Hanks v. Thompson the court refused to entertain jurisdiction of a judgment for costs alone where a nonsuit had been taken. The subject was discussed at some length, and the authorities referred to for a...