Texas & P. Ry. Co. v. Davis

• Decision Date: 08 January 1902
• Citation: 66 S.W. 598
• Parties: TEXAS & P. RY. CO. v. DAVIS.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

66 S.W. 598

TEXAS & P. RY. CO. v. DAVIS.¹

Court of Civil Appeals of Texas.

January 8, 1902.

Appeal from district court, El Paso county; A. M. Walthall, Judge.

Action between the Texas & Pacific Railway Company and Britton Davis. From an order overruling the former's motion to retax costs, it appeals. Affirmed.

Edwards & Edwards, for appellant. Falvey & Davis, for appellee.

NEILL, J.

Appeal from an order overruling a motion of appellant to retax costs and tax such of them as accrued between certain dates against appellee, upon the ground that during the interim the court had no jurisdiction of the case. There is no statement of facts in the record in relation to the subject-matter of this appeal, although in the judgment appealed from overruling the motion 10 days after adjournment was given appellant in which to file the same. This indicates that in considering the motion the court heard and determined it upon evidence pertinent to the matter. In the absence of such a statement it will be presumed in favor of the judgment that the court did not err in the matter as is claimed by appellant. It is therefore affirmed.

On Motion for Rehearing.

(Feb. 19, 1902.)

In this motion it is asserted that "the motion to reform the judgment as to the question of costs adjudged against appellant and the appeal from said motion show clearly that the motion was tried upon the record in the cause without the introduction of testimony, and that the inadvertent statement in the notice of appeal in regard to the statement of facts should be treated as surplusage, and the cause decided upon the record made in the cause." This assumes that the order granting appellant 10 days after adjournment in which to file a statement of facts was made through inadvertence. We know of no principle which would authorize us to make such an assumption against the correctness of a record as would destroy its obvious import and meaning. The motion to retax costs, from which this appeal is prosecuted, was of such a nature as might require evidence to enable the trial court to properly dispose of it. And it is apparent from the order granting appellant 10 days after adjournment to file a statement of facts that evidence was heard, else such an order would not have been made. The evidence may have shown such facts as would, in its discretion, authorize the court in overruling appellant's motion. The matter of taxing costs is left largely to the discretion of the district court. Jones v....