Trevino v. Stillman

Citations

• 48 Tex. 561

Syllabus

<p>1. Dormant judgment—Mandate, when to be issued.—A judgment was affirmed February 14, 1873, by the Supreme Court. On July 21, 1873, the clerk made out a mandate in the case, which was held up because of a motion for rehearing. The motion was overruled October 14, 1873, and the term at which the judgment was affirmed ended by adjournment November 28, 1873. Execution was issued in the court below October 21, 1874. On application to enjoin the execution on the ground that the judgment was dormant: Held—</p> <p>1. From these facts, there is no presumption that a mandate was issued before the adjournment of the term of the Supreme Court at which the action was had.</p> <p>2. Prima facie, the judgment had not lost its validity, the execution having issued within twelve months of the adjournment of the court in which the judgment of affirmance was rendered, and within twelve months from the filing of the mandate, allowing a. reasonable time, after the action of the court upon the motion for rehearing, within which to file the mandate.</p> <p>3. The law does not require the clerk to issue the mandate until the payment of his costs; nor, in the usual course of business, until the close of the term.</p> <p>4. Until the end of the term, the judgments of this court are within its control, and liable to he set aside, even after a motion, for rehearing has been overruled.</p> <p>2. Dormant Judgment.—On an injunction to restrain an execution. issued upon a dormant judgment, when the defendant in the injunction suit asks that his judgment be revived, it is proper that-: . such action be taken, there being no reason against it shown.</p>