
    Baker v. Tom.
    If the defendant in an action of trespass to try title, where damages arc not claimed, disclaim when first brought into court, he ought to recover costs against tlie plaintiff; but if he takes defense, and afterwards obtains leave to amend, and then liles a disclaimer, the court may impose costs as a condition to the leave to amend.
    It is not error t-> refuse leave to withdraw a disclaimer after judgment has been rendered upon it.
    Appeal from Guadalupe. The appellee sued tlie appellant, for two lots in tlie- town of Scgiiiu. 'At tlie next term of the court the plaintiff disclaimed as to one of the lots. There was a trial; verdict for the defendant; new trial; continuance. Afterwards the defendant, obtained leave to amend, and ñled a disclaimer as to the remaining lot then in controversy; whereupon the court rendered the. following judgment: “It is ordered, &o., that the, parties pay “equal moieties of the costs up to the time of tlie plaintiffs filing' a disclaimer “ to one of (he lots originally sued for; and that the defendant pay all costs “from the time of the plaintiff’s filing his disclaimer to the first lot to the time “ of tlie filing o£ the. defendant’s disclaimer to the other; and that the plaintiff “pay all eosis accruing after the filing of the defendant's disclaimer; and that “the writ of possession he awarded to (he plaintiff for the possession of the, lot disclaimed by (lie defendant.” Thereupon tho defendant moved (he court for leave to withdraw liis disclaimer. Motion overruled. Defendant appealed. Errors assigned—
    1st. Tlie judgment against the defendant for part of the costs.
    2d. The overruling defendant’s motion for leave to withdraw liis disclaimer.
    
      Neill, for appellant.
    
      Gordon, for appellee.
   JjIPSCOMB, J.

Tlie only error relied on is that the court erred in its judgment as to the costs, giving the plaintiff a part of the costs, when the defendant should hare recovered costs against the plaintiff. Had the defendant disclaimed when first brought into court, so far as the title was involved the plaintiff ought undoubtedly to have paid all costs. Bnt this he did not do, hut set up title to tlie only lot that was then in controversy; and it was not until there had been a trial iiud a verdict in his favor, which was set aside and a new trial granted, and another term of tho court, that ho. asked leave to amend, and then disclaimed as to the property sued for. It was certainly within tlie discretion of tlie court to prescribe the terms on which he could he permitted to amend; and the judgment of the court must he considered as having reference to the time that had elapsed and the unnecessary costs imposed on the plaintiff by such delay in exacting a part of the costs from the defendant. We say nothing about the effect of a disclaimer on the rights of the plaintiff in an action brought as well to recover damages for the trespass as to try title. That question has not been raised. The plaintiff does not complain of the judgment. In the aspect in which the case is presented we can perceive no error.

Judgment affirmed.  