John Hoffman v. John Bowen, 17 Tex. 506

Lipscomb, J. The error assigned in this case is, that the judgment is for a greater amount than is authorized by the finding of the jury. On reference to the verdict and judgment, it is found that there is a mistake in the calculation of interest by the Clerk., and it exceeds the true amount about seventeen dollars and fifty-nine cents. The appellee offers to remit this excess, and asks an affirmation of the judgment. There is nothing to be considered of, but the costs : and under the circumstances oí this case, we are of the opinion that the appellant is not entitled to costs.

It is clear, that it is the mistake of the Clerk ; that has furnished the appellant with his sole ground of error ; nor has he assigned any other ; and it does not appear to u? co have been more the duty of the plaintiff below to have inspected the Clerk’s calculation of interest, than it was for the defendant. Had it been noticed at the time, it would have been corrected without any additional costs. Or had the appellant, before perfecting his appeal, given notice to the appellee, it could and no doubt would have been corrected in the Clerk’s office by the appellee.

It appears, however, that ic must have been known to appellant, at the time the judgment was rendered ; because he claims an appeal from the judgment, and assigns the mistake of the Clerk as grounds for reversing the judgment. On the appellees entering the remittitur the judgment will be affirmed with costs. Judgment affirmed.