Baker v. Tom

4 Tex. 3

• Court: Texas Supreme Court
• Decided: December 15, 1849
• Status: Published

Opinion

JjIPSCOMB, J.

Tlie only error relied on is that the court erred in its judgment as to the costs, giving the plaintiff a part of the costs, when the defendant should hare recovered costs against the plaintiff. Had the defendant disclaimed when first brought into court, so far as the title was involved the plaintiff ought undoubtedly to have paid all costs. Bnt this he did not do, hut set up title to tlie only lot that was then in controversy; and it was not until there had been a trial iiud a verdict in his favor, which was set aside and a new trial granted, and another term of tho court, that ho. asked leave to amend, and then disclaimed as to the property sued for. It was certainly within tlie discretion of tlie court to prescribe the terms on which he could he permitted to amend; and the judgment of the court must he considered as having reference to the time that had elapsed and the unnecessary costs imposed on the plaintiff by such delay in exacting a part of the costs from the defendant. We say nothing about the effect of a disclaimer on the rights of the plaintiff in an action brought as well to recover damages for the trespass as to try title. That question has not been raised. The plaintiff does not complain of the judgment. In the aspect in which the case is presented we can perceive no error.

Judgment affirmed.