Opinion
No. 5480.
April 21, 1915.
Error from District Court, McLennan County; Tom L. McCullough, Judge.
Action by J. B. Strange and others against H. B. Cohen. There was a judgment for defendant, and, on plaintiff's motion, costs were retaxed against defendant, who brings error. Reversed and rendered.
W. L. Eason, of Waco, for plaintiff in error.
J. B. Strange, defendant in error, brought suit against plaintiff in error to enjoin him from building a barn and a mule lot on certain premises, and from maintaining a feed pen and mule lot thereon. He applied for and obtained a temporary restraining order. Upon motion this order was dissolved, in so far as it restrained plaintiff in error from erecting his barn and other improvements on said lot, but in so far as it restrained him from using the premises as a mule lot it was continued until the case should be finally tried. Upon final trial the court peremptorily instructed a verdict in favor of plaintiff in error, and adjudged all costs against defendant in error Strange and his bondsmen, H. G. Youngblood and J. L. Brown, defendants in error herein. Subsequently, Strange filed a motion to retax the costs, and the court taxed all costs up to the time the order was entered on the motion to dissolve against plaintiff in error. Plaintiff in error filed a motion to set aside said judgment, and to retax all costs against defendants in error, which motion was overruled, and plaintiff in error sued out a writ of error herein.
The statute provides that:
"The successful party to a suit shall recover of his adversary all the costs expended or incurred therein, except where it is or may be otherwise provided by law." Article 2035, Rev. Stat.
Article 2048, Id., provides:
"The court may, for good cause, to be stated on the record, adjudge the costs otherwise than as provided in the preceding articles of this chapter."
No cause is stated in the order of the court taxing a part of the costs against plaintiff in error, and no good cause appears of record why it should have done so. The order upon the motion to dissolve shows that the restraining order, as issued, should not have been granted. The judgment upon final trial shows the suit should never have been brought.
The judgment of the trial court, as to the cost, is reversed, and here rendered in favor of plaintiff in error, that he have judgment against defendants in error for all costs incurred in the court below and the costs incurred on this appeal.
Reversed and rendered.