
    MAXWELL’S UNKNOWN HEIRS et al. v. BOLDING et al.
    No. 1006.
    Court of Civil Appeals of Texas. Waco.
    Feb. 16, 1933.
    
      H. E. Chesley, of Hamilton, and Wilkinson & Wilkinson, of Brownwood, for appellants.
    A. R. Eidson, of Hamilton, for appellees.
   ALEXANDER, Justice.

This is an application filed in this court by A. L. Maxwell and others for an injunction restraining Lillian Bolding and others from levying upon and soiling under execution certain property belonging to petitioners in satisfaction of the court costs incurred in a certain cause theretofore pending between them in the district court of Hamilton county.

Lilliam Bolding and others, who are the respondents in the above petition and who will hereinafter be referred to as appellees, filed suit ip the district court of Hamilton county against the unknown heirs of James Maxwell, deceased, who are the petitioners here-' in and who will be referred to as appellants, for partition of the community estate of William Maxwell and Mollie Maxwell, both deceased. The first trial in that court resulted in a judgment for the plaintiffs therein, but upon appeal to this court the judgment of the trial court was reversed and the cause remanded for new trial. See 11 S.W. (2d) 814. Upon the second trial judgment was for the plaintiffs therein and the property was ordered partitioned among the plaintiffs and the defendants. The trial court apportioned the costs of both trials among the plaintiffs and defendants, four-sevenths to the plaintiffs and three-sevenths to the de-' fendants, in proportion to the value of the property awarded to each, as provided in Revised Statutes, article 6109. On appeal to this court the judgment of the trial court was affirmed. 86 S.W.(2d) 267. In the order of affirmance it was recited that the appellants and their sureties “shall pay all costs in this behalf expended.” The appellants paid all costs of appeal and the mandate issued out of this court. Thereafter Lillian Bolding and others, appellees in said suit, caused an execution to issue out of the trial court for all costs incurred in both trials in that court and caused same to be levied upon the property of the appellants in said cause. The appellants offered to pay their pro rata share of the court costs so incurred in accordance with the judgment of the trial court, but the appellees declined to accept same in settlement of the cost awarded by said judgment. The appellants applied to this court and secured the issuance of a temporary writ of injunction restraining the sale of said property under said execution. The matter is now before this court to have said injunction made permanent.

The language of the judgment of this court, as shown by its mandate on the last appeal, to the effect that appellants and their sureties “shall pay all costs in this behalf expended,” had reference only to the costs incurred incident to the appeal and not to any costs incurred in the trial court. Bonner v. Wiggins, 54 Tex. 149; Gulf, C. & S. F. Ry. Co. v. Hume (Tex. Sup.) 30 S. W. 863. All costs incident to the appeal have been paid by the appellants and such costs are not involved in this controversy. The only question to be determined is: Who is liable for tbe costs incurred in tbe trial court?

As before stated, tbe trial court apportioned tbe costs incurred in botb trials among tbe parties, plaintiffs and defendants, in proportion to tbe amount of property ■awarded to each of them. Tbe appellees now contend that tbe appellants are liable for all sucb costs, while tbe appellants contend tbat they are not liable for any part of tbe costs of tbe first trial. Since this court affirmed the judgment of tbe trial court, it necessarily affirmed that part of tbe judgment which apportioned tbe costs among tbe plaintiffs and defendants therein, even though sucb cost was not specifically referred to in tbe judgment of this court. Summerhill v. Darrow (Tex. Sup.) 62 S. W. 1054, par. 3. That judgment has become final and determines the issues here involved unless this court was without authority to render 'sucb judgment.

Tbe appellees contend that under tbe provisions of Revised Statutes, article 2065, .upon affirmance of tbe judgment of tbe trial .court, tbe appellants, as a matter of law, became liable for all costs incurred in tbe trial .court. Said article 2065 provides as follows: “When a case is appealed, if tbe judgment of tbe higher court be against tbe appellant, but for less amount than tbe original judgment, sucb party shall recover tbe costs of tbe higher court but shall be adjudged to pay tbe costs of tbe court below; if tbe judgment be against him for the same or a greater amount than in tbe court below, the adverse party shall recover tbe costs of botb courts. If tbe judgment of tbe court above be in favor of tbe party appealing and for more than tbe original judgment, such party shall recover tbe costs of botb courts; if tbe judgment be in bis favor, but for tbe same or a less amount than in tbe court below, be shall recover tbe costs of the court below and pay tbe cost of the court above.” Tbe above article was enacted for tbe purpose of prescribing tbe rule to be followed in assessing, the costs in tbe county court where a case has been removed thereto by appeal or certiorari from tbe justice court, and' does not have reference to tbe assessment of costs by tbe Court of Civil Appeals. This is apparent from tbe provisions of Revised Statutes 1911, articles - 2046 and 2047, from which article 2065 of Revised Statutes 1925 was taken. Said articles 2046 and 2047 constitute) a part of tbe chapter regulating practice in the county and district courts and deal with cases removed thereto by appeal or certiorari. These articles were taken from tbe Acts of 1870, page 87 (Paschal’s Digest, §§ 6348 and 6349), which dealt specifically with cases removed from tbe justice court to the district 'court. Tbe matter of assessing costs by the Court of Civil Appeals is regulated by Revised Statutes 1925, articles 1857, 1860, and 1870. We therefore bold that said article 2065 does not control in tbe matter here under consideration.

While tbe general rule is that tbe litigant who is successful in tbe trial court is entitled to recover of bis adversary all costs, a review of the various provisions of tbe statute discloses that this rule does not always prevail. For example, it is provided in article 2056 that tbe successful party shall recover of bis adversary all costs incurred therein, except as otherwise provided. Article 2066 provides that tbe court may, for good cause to be stated on tbe record, adjudge tbe costs otherwise. Article 6109 provides that in partition suits tbe costs shall be apportioned between tbe parties in proportion to tbe property allotted to each. Where a litigant is successful in having a part of tbe costs adjudged against bis adversary in tbe lower court under either article 2066 or 6109, be should not be penalized merely because be is dissatisfied with sucb judgment and elects to appeal therefrom; yet such would be tbe result if be should be unsuccessful in bis appeal and if we should apply tbe provisions of article 2065 in assessing tbe costs. He would not only subject himself to liability for tbe costs incident to and brought about by tbe appeal, which would be proper, but he would subject himself to tbe penalty of having to pay all costs incurred iu the trial court. He would thus lose a part of tbe benefits recovered in tbe lower court merely because be, in good faith, elected to test tbe sufficiency of tbe judgment by appeal. We cannot assume that tbe Legislature intended to thus assess a penalty against a party who prosecutes bis appeal in good faith, though unsuccessfully. Tbe penalty for prosecuting a vexatious appeal is prescribed by Revised Statutes, article 1860.

We are of tbe opinion that when we affirmed tbe judgment of tbe trial court, we properly affirmed that part of tbe judgment apportioning tbe costs of both trials therein among tbe parties plaintiffs and defendants, and that appellants should be held liable for ■ only sucb part of said costs as was adjudged against them in tbe trial court.

Since tbe judgment of tbe trial court was affirmed by this court, it thereby became tbe judgment of this court, and we have a right, and it becomes our duty, to protect said judgment and to see that it is properly enforced. 11 Tex. Jur. 908, § 131; Cattlemen’s Trust Co. v. Willis (Tex. Civ. App.) 179 S. W. 1115; Browning-Ferris Machinery Co. v. Thomson (Tex. Civ. App.) 55 S.W.(2d) 168.

Tbe appellees are entitled to collect from tbe appellants only sucb portion of tbe costs as was awarded against them by tbe trial court. Upon tbe payment of that part of tbe costs into the registry of the trial court by tbe appellants, tbe temporary injunction heretofore issued herein will be made permanent.  