Cochran v. Kellum

4 Tex. 60

Opinion

Lipscomb, J.

The error assigned is that the court erred in rendering the judgment against (lie plaintiff for costs. The question depends entirely on the character of the evidence on which tiie jury returned their verdict. If the amount sued for by tiie plaintiff he reduee'd by set-off to an amount not within the jurisdiction of the court, judgment'shull still lie given for the amount due the plaintiff and for costs of suit. But should the claim of the plaintiff be reduced lo a sum not within tiie jurisdiction of the court by payment, then the judgment shall bo given for the plaintiff for the balance due, but the, defendant shall recover the costs of the suit. (Acts 4, vol. 63, sec. 4.) If the evidence was eonlined to the aceouut filed and made an exhibit under (lie plea of set-off, then the judgment would be manifestly wrong. But if payment was proved tinder the averments in the answer, and tiie plaintiff's claim was reduced to the amount found by the verdict of live jury, being a sum under the jurisdiction of tiie District Court, tiie judgment was properly rendered against the plaintiff for costs. But there being no statement of facts, wo cannot know what was tiie testimony; and in ali such eases the iiresnmption is in favor of its being such as to support the judgment of tiie court. If tiie judgment was wrong and was founded ou evidence of the set-oil’, we can only say that the plaintiff ought to have shown that error by a statement of facts. There is no ground presented by the record to reverse the judgment. It is therefore affirmed.

Nora 26.—Watts v. Harding, 5 T., 386,

Judgment affirmed.