
    J. D. Nicholson v. Fred Ende.
    (No. —, Op. Book No. 1, p. 162.)
    Error from Hunt County.
    November 13, 1876.
   Opinion by

Ector, P. J.

§ 496. Remittitur after writ of error sued out; effect of. The judgment was excessive. Defendant filed his petition and bond for writ of error, but, before the transcript was obtained, the plaintiff in the judgment filed in the record a remittitur of the excess of the judgment, and this was incorporated in the record sent up. If such a remittitur had been filed in this cause before the defendant had filed his petition and given bond for writ of error, he would have had no necessity or cause to have taken the case to the appellate court; but as this was not done until after the defendant had been compelled to take steps onerous in their nature to obtain what was then his rightful remedy, he should not now be taxed with the costs for perfecting his writ of error. [Chrisman v. Davenport, 21 Tex. 483.]

Reformed and rendered.  