W. A. Lockhart v. Samuel Lytle et al., 51 Tex. 601

Bonner, Associate Justice. This proceeding was commenced by injunction to stay an execution for costs and retax the same, by appellant W. A. Lockhart, defendant in execution, against Samuel Lytle, plaintiff in execution, and William Stuckler, clerk of the District Court of Medina county. On writ of error prosecuted at a former term of this court, it was held, that the proceeding was not a bill in equity, but a motion to retax cost, with an order or mandate of the court from "which the execution issued to supersede the same until the motion could be heard.

It was, in effect, further held, that the defendant William Stuckler had not such interest in the subject-matter as made him, by reason thereof, a necessary party, the proceeding being properly against Samuel Lytle, the plaintiff in execution. (Lockart v. Stuckler, 49 Tex., 765.) Under this ruling the alleged failure to have the heirs of William Stuckler properly before the court, on the last trial, was not error for which the judgment should be reversed.

The costs as embraced in the execution having been taxed by the proper and sworn officer for this purpose, the presumption is that it was correct; and the motion to retax having been dismissed for want of prosecution, it did not devolve upon the court to examine the several items thereof, to see whether in fact they were correct. The defendant in execution having failed to appear and point out the alleged errors, the court might very well presume, under the rules of practice in analogous cases, that he had no cause of complaint.

A very different rule of practice prevails in case of judgment upon an unliquidated demand, from that of judgment for want of prosecution. We do not think that the application was sufficient to set aside the judgment dismissing the proceeding for want of prosecution. The circumstances of the alleged unavoidable absence of complainant are not shown. Ho reason is given why a response was not made to the communication which seems to have been sent, under tbe direction of the court, to absent counsel, when the cause was first regularly reached and postponed until they could be heard from.

The circumstances under which the attorney who is alleged to have abandoned the suit did this, are not shown so that the court could determine whether tbe complainant himself was not in default; and no other affidavit but his own was taken in support of the motion, although some of the facts stated would seem to have been personally known to other parties, and not of his own knowledge. (Foster v. Wood, 6 Johns.

Ch., 87.) The appellee having confessed error in this, that judgment was improperly rendered against the sureties on the injunction bond, the judgment below is reversed and reformed as to them, and affirmed as to all other matters; the appellant to recover the costs of this court on this appeal. Reversed and reformed. [Chief Justice Moore did not sit in this case.]