Opinion
No. 8126.
July 27, 1935.
Appeal from District Court, Travis County; J. D. Moore, Judge.
Action between W. E. Farnan and E. D. Cartwright and others. From an order granting a motion to retax an item of cost, W. E. Farnan appeals.
Appeal dismissed.
Hornsby Hornsby, of Austin, for appellant.
Webb Webb, of Elgin, for appellees.
This appeal is from an order granting a motion to retax an item of cost of $5.90, for the publication of the notice of sale of real estate. The question of the amount of the cost for the publication turned upon the determination of whether chapter 161, Acts 39th Legislature, appearing in Vernon's Annotated Civil Statutes as article 29a, repealed article 3808, R. S. 1925. See Final Title of R. S. 1925, § 21, and Schlitter v. King (Tex.Civ.App.) 81 S.W.2d 546, 547. The appeal is from the judgment for costs only, there being no appeal from the judgment on the merits of the case in which the cost item in question was incurred. The amount in controversy being only $5.90, this court has no jurisdiction to entertain the appeal. It has been held that the appellate courts may entertain jurisdiction of an appeal from an order retaxing costs, but that the amount of such costs must be for a sum required to give appellate jurisdiction under the statutes. Article 2249, R. S. 1925, and article 1819 as amended by Acts 1929, c. 33, § 1 (Vernon's Ann.Civ.St. art. 1819). This is true even though the judgment rendered in the case in which the costs were incurred is less than the amount which would authorize an appeal. But the costs involved must themselves amount to a sum equal to or greater than required to give jurisdiction. M., K. T. Ry. Co. v. Milliron, 53 Tex. Civ. App. 325, 115 S.W. 655; 11 Tex.Jur., 323-325, § 60; 3 Tex.Jur. 98, § 45. See, also, Warren v. Shuman, 5 Tex. 441; Lockhart v. Lytle, 51 Tex. 601.
The appeal will be dismissed for want of jurisdiction.
Appeal dismissed.