Opinion
No. 5580.
October 11, 1916.
Appeal from District Court, Robertson County; J. C. Scott, Judge.
Motion to retax costs. Motion overruled.
For former opinion, see 185 S.W. 633.
Baker, Botts, Parker Garwood, of Houston, and Stribling Stribling, of Waco, for the motion.
On a former day we rendered judgment in this case reversing and remanding the same. The clerk taxed the costs against the appellee, as shown by the record. Appellant has filed a motion to retax the costs, and attached thereto a certified bill of costs showing stenographer's report and statement of facts $207, which was not shown by the certified bill of costs in the original record. Appellant asks us to recall our mandate and to tax this cost against appellee. Of course, the appellant, having been successful on the appeal, is entitled to recover the costs of such appeal in a proper proceeding in a proper tribunal; but appellant's motion asking us to recall the mandate and retax this cost is, in effect, a motion for certiorari to correct the judgment. The appellant should have seen to it that the bill of costs was correct in the first Instance, and it had 30 days after filing the record in this court in which to ask for certiorari to correct the same. Under these circumstances we do not feel called upon to recall the mandate and amend our judgment herein.
Motion to retax is overruled.