Dupree v. State , 48 Tex. Civ. App. 272 ( 1908 )


Menu:
  • At a former day of this term we rendered a judgment dismissing this appeal at the cost of the appellants. In the opinion handed down at that time it is stated that this suit was brought in the County Court of Brown County under what is known as the "Search and Seizure Act," passed by the Legislature April 5, 1907; and, following the case of Meyers v. The State, 19 Texas Crt. Rep., 800, we held that the action was one to recover a penalty under the statute referred to and that the County Court had no jurisdiction of a case of that character, and consequently, an appeal from a judgment rendered by that court did not confer jurisdiction upon this court.

    In the motion for rehearing filed by the appellants it is insisted that we erred in taxing the costs of the appeal against the appellants and in not reversing with instructions to the trial court to dismiss. We agree with appellants in this contention. Llano Improvement Furnace Co. v. White, 5 Texas Civ. App. 109[5 Tex. Civ. App. 109], and cases there cited, and Wadsworth v. Chick, 55 Tex. 242.

    As the appellee brought this suit in a court which was lacking in jurisdiction, it should bear the burden of all the costs that resulted by reason of the suit. The appellants as defendants, were brought into the case by the suit of the State, and they had the right to defend, not only in the court in which the suit was originally brought, but to appeal from the judgment rendered against them, and the costs incurred in pursuit of this right should be taxed against the party who forced them into this situation.

    The judgment of the court below will be reversed, with instructions to the trial court to dismiss the case for the want of jurisdiction, with a judgment for costs against the appellee. The costs of this appeal are also taxed against the appellee.

    Reversed and remanded. *Page 274

Document Info

Citation Numbers: 107 S.W. 926, 48 Tex. Civ. App. 272

Judges: FISHER, CHIEF JUSTICE. —

Filed Date: 2/5/1908

Precedential Status: Precedential

Modified Date: 1/13/2023