Bradshaw v. Davis

8 Tex. 344

Opinion

Hemphill, Ch. J.

The errors assigned had been examined with a considerable degree of attention, and conclusions upon them attained, when it was ■discovered that the judgment entered in the cause was not final, and that consequently the appeal was prematurely taken. The judgment upon the verdict should have been that the original petition be dismissed, or that the plaintiff take nothing by his suit, or that the defendants go hence and be discharged without day, &e., or expressions of equivalent import should have been used, •showing that the subject-matter of the controversy had been determined, and that in favor of the defendant. (Warren v. Shuman, 5 Tex. R., 441; Hanks v. Thompson, Id., 6.)

The recovery of costs is but an incident to the principal judgment; and to enter j udgment for the costs alone is to substitute the incident for the principal. The appeal is dismissed.

Appeal dismissed.