
    COOKSEY v. JORDAN et al.
    (Supreme Court of Texas.
    Jan. 31, 1912.)
    1. Appeal and Error (§ 1111)—Answer to Petition in Error—Determination.
    Where defendant in error files an answer or reply to a petition for a writ of error, the Supreme Court may finally pass upon the matter, if in its judgment it seems best.
    [Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 1111.]
    2. Judgment (§ 229)—Conditional Judgment.
    Where a judgment awarded defendant a certain sum as an attorney’s fee in case no appeal was taken, and a larger fee if an appeal was taken, the judgment was valid only as to the smaller sum, as a judgment must be unconditional.
    [Ed. Note.—For other cases, see Judgment, Dee. Dig. § 229.]
    3. Costs (§ 234)—On Appeai>-Assignment of Error.
    Where the error in a judgment awarding defendant an attorney’s fee was not assigned as error in the Court of Civil Appeals, but was treated as fundamental error, and the judgment was valid in part, the costs of that appeal will be taxed against the appellant.
    [Ed. Note.—For other cases, see Costs, Dec. Dig. § 234.]
    Error to Court of Civil Appeals of Third. Supreme Judicial District,
    Action by J. B. Cooksey against J. G. Jordan and others. From the judgment, plaintiff appealed to the Court of Civil Appeals, which affirmed the judgment '(140 S. W. 1175), and plaintiff brings error.
    Reversed, and judgment rendered.
    R. S. Neblett and R. R. Owen, for plaintiff in error. Treadwell & Tarver, for defendants in error.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   RAMSEY, J.

A writ of error was prosecuted to this court from the judgment of the Court of Civil Appeals for the Third Supreme Judicial District. The opinion of that court, which will be found reported in 140 S. W. 1175, in our judgment correctly decides and disposes of the case except in, the respect hereinafter noted.

The judgment of the trial court decreed in favor of Huggins and against plaintiff in error a recovery of the sum of $150 as a reasonable fee for his attorney in the suit in the event the case was not appealed, and provided for the sum of $250 “in the event of an appeal.” The judgment of the trial court recites that same is “alternative, final, and not conditional,” and, further, that “the clerk of this court is directed, on the request of the said Huggins, to issue execution on this judgment for one hundred and fifty ($150.00) dollars, interest, and costs; if appeal is perfected on this judgment within the manner and time prescribed by law, then said writ of execution shall be for the sum of two hundred and fifty dollars, interest, and costs.” It is urged in the application submitted to us that this judgment is void, and is fundamentally wrong, in that it imposes a penalty on Cooksey for appealing. The ap-pellee has filed an answer or reply to the petition for writ of error, and we are therefore authorized, under the act of the last Legislature, to finally pass on the matter, if in our judgment it seems best so to do. We think, on full reflection, that' the interests of both parties would be subserved by a judgment finally concluding and ending the litigation.

That there can be but one final judgment in any ease is elementary. That such judgment may contain provisions for its execution or satisfaction is not to be doubted or denied. The judgment rendered in this ease, however, does not fall within this rule. Here there is in effect a judgment, unconditional and in no manner contingent, for $150, and containing, in substance, a provision that, in the event an appeal was prosecuted, Huggins should recover the additional sum of $100. This provision of the judgment was and is unauthorized in the mannfer attempted to be rendered. It does not, however, in our opinion, render invalid so much of the judgment as the court had authority, on the hearing of the case, to render.

This matter was not assigned as error in the Court of Civil Appeals, but was presented as a fundamental error. We think, therefore, that the appellant, Cooksey, should pay the costs incurred in that court, as well as in the district court.

It is therefore ordered, adjudged, and decreed that the judgment of the Court of Civil Appeals be and the same is hereby reversed, and judgment .is here rendered that W. M. Huggins do have and recover of and from J. B. Cooksey and his sureties, Jas. Garrety and M. Sowell, for the sum of $150, with 6 per cent, interest per annum from April 1, 1910, together with all costs expended in the district court and in that court, and that plaintiff in error, J. B. Cooksey, recover from said W. Bf. Huggins all costs incurred in this court.  