C. Yale, Jr., v. James G. Heard, 26 Tex. 639

Wheeler, O. J. In revising the judgment of the court below this court does not look to matters subsequent to its rendition. The appeal does not bring in question proceedings in execution of the judgment, and they are not included in the record. If payments have been made and credits entered subsequently to the rendition of the judgment, they would not ordinarily be brought to the attention of this court by anything appearing in the record. This court revises the judgment as rendered, and if there be no error affirms that judgment in terms, without noticing payments Which may have been made upon it.

But this does not authorise the collection of the sums so paid upon the-judgment of this court •affirming the judgment below, though the- sum of that judgment Were mentioned in the judgment of affirmance. The affirmance adjudges only that the judgment "was rightly rendered for such an amount due at the time of its rendition. And if it appears that there was no ground of error or appeal, this court awards damages upon the amount of the judgment below. .

But this is not an adjudication that that amount remains due and unpaid; or that the plaintiff below shall recover a sum certain in damages though the judgment had been satisfied. The damages are dependent and consequent upon the principal remaining unpaid. If there be evidence of payment's brought to the knowledge of the Clerk of the District Court, he must credit them upon the execution, and as well the damages awarded upon the sum paid, as the principal, if the payment Was made before the appeal or the sueing out of the writ of error. The right to damages depends upon the right to the principal.

This court does not adjudge that a sum certain be recovered in damages at all events, but only awards as damages ten per cent, upon the amount adjudged below. But if the amount adjudged below had been satisfied before the appeal, there was nothing on which to compute damages, and none can be recovered. There was, in this case, as little reason to insist upon the recovery of damages upon the payments, as there was to insist upon the collection of the principal sums which had been paid. The judgment of affirmance by this court gave no more right to the one than the other, and the court below very properly so ruled.

The judgment is affirmed. judgment affirmed.