
    Robert Weatherred v. William Mays
    Appeal from Red River County.
    A judgment for costs cannot tie given against the plaintiff in an action, where the setoff of the defendant exceeds the amount established by the plaintiff.
    A defendant cannot plead in setoff a judgment obtained by him against the plaintiff, and upon which an appeal has been taken to a higher court, whilst such appeal remains undecided.
    This was an action of debt brought by Weatherred, the plaintiff in the court below, at the spring term, 1845, to recover of the defendant, Mays, the sum of $284.74 alleged to be due and owing for work, labor, etc.
    The defendant, in his answer, demurred to the plaintiff’s petition, and pleaded the general issue, the statute of limitations and also a setoff of $358.64, being the amount of a judgment which defendant alleged he had obtained against the plaintiff, at the fall term, 1844, of said court.
    On the 10th of October, 1845, the cause was tried upon these issues, when a verdict was rendered in favor of the defendant for $159, principal, and $17.92, interest thereon, and for which, together with costs of suit, judgment was entered accordingly. From this judgment the plaintiff appealed to this court.
    The record contains a bill of exceptions, from which it appears that the judgment obtained by defendant against the plaintiff, at a former term of the court, and which he pleaded as above, as setoff in this case, had been appealed from by the plaintiff, who had given bond, etc., according to law. Plaintiff, therefore, moved to strike out the plea of setoff, but the motion was overruled by the court, and the record of said judgment allowed to be read in evidence. To this plaintiff’s counsel excepted.
    Duval, for appellant,
    cited upon the subject of setoff, the 4th section of the act of February 5, 1840, of the laws of Texas, and contended that the judgment was erroneous because costs were given against the plaintiff below on the plea of setoff. He also contended that the judgment was erroneous because the defendant was allowed to plead in setoff a judgment previously recovered by him against the plaintiff, and from which an appeal had been taken and was then pending.
    Morrill, for appellee; no brief filed.
   Lipscomb, J.

The appellant brought suit against the appellee' to recover the value of certain work and labor. The defendant, with other defenses to the action, set up a judgment, which he had obtained in the district court against the plaintiff, from which judgment there had been an appeal to the supreme court and had not been decided in that court. The'plaintiff objected to the setoff being received, but the objection was overruled, and the jury found a verdict in favor of the defendant for a considerable balance; whereupon the court rendered judgment in favor of the defendant for the amount so found, and his costs.

The court certainly erred in giving judgment against the plaintiff for costs, and so far it is in direct contravention of the 4th section of the act of congress allowing discounts and setoffs. 4 Laws Texas, 63. On the other ground, it seems to us the court also erred. Had not the judgment rendered against the plaintiff been appealed from, there can be no doubt that it could have been pleaded as a setoff, and it could not have been questioned, unless on the ground of a want of jurisdiction in the court rendering it or on the ground of fraud. But when an appeal had been taken, it proved nothing as to the indebtedness of the party. It could not be given in evidence as a subsisting debt, until it had received the affirmation of the supreme court to which it had been taken. The question whether it was correct or not was not open for discussion in the district court.

Because, therefore, the court erred in rendering the judgment against the plaintiff for costs, and in admitting the judgment of the court at a former term (from which judgment an appeal had been taken) to be given in evidence as a setoff, the judgment is reversed and the cause remanded.  