Black v. Epperson

Citations

• 40 Tex. 162

Syllabus

<p>1. A judgment in the Supreme Court, rendered April 28, 1859, affirming the judgment below, with damages against the plaintiff in error, in a case in which the writ of error and error bond bear date 4th of same month, is not void.</p> <p>2. Prior to the repeal, January 28, 1860, of the 6th Section of the act concerning proceedings in the Supreme Court” (Paschal’s Digest, Articles 1583-1592), and under the repealed section, it was the duty of the plaintiff in error to file the record within forty days after the perfection of his process in error, and the practice in this case was in accordance with the law in force at the date of said judgment in the Supreme Court.</p> <p>3. Everything must be presumed in favor of regularity in all things necessary to the jurisdiction of a court having exclusive jurisdiction of the subject.</p> <p>4. Upon an affirmance, on appeal or error, of a judgment, and against the sureties on the error or appeal bond, such surety, being liable, may at any time pay the judgment, and thereby become subrogated to all the rights of the creditor at the time of such payment.</p> <p>■5. The official notice of the action of the Supreme Court to the district clerk after the writ of error has been perfected, is the mandate, and until the mandate is filed the clerk cannot issue execution; therefore, the issuance and filing of the mandate will be presumed, from the issuance of executions upon a judgment in the District Court, after the same has been affirmed on error.</p> <p>6. There is no prohibition on the issue of a second mandate, and the issuance of one is not inconsistent with the fact of a former one.</p> <p>7. By the act of February 14, 1860, and the act of November 9, 1866, the vitality of all judgments in the District Court was extended for a term of ten years between executions.</p> <p>8. The judgment of the Supreme Court, April 28, 1859, against the plaintiff in error and sureties on the error bond, fixed alien upon the lands in the county be