Lubbock v. Vince

5 Tex. 415

• Court: Texas Supreme Court
• Decided: December 15, 1849
• Status: Published

Opinion

Wheeler, J.

It might be a matter of some difficulty to determine what was the precise effect of the judgment of the Supreme Court rendered in 1840, evidenced by its mandate. It at least had the effect to terminate the appeal. The “ cause ” was “ remanded ” to the District Court. It was then no longer a cause depending in the Supreme Court. The appeal and consequently the supersedeas were thereby determined. Thus much at least is clear, and is sufficient for the disposition of the present case.

The judgment of this court rendered in April, 1847, evidenced by the second -mandate in the record, does, we think, in no way affect the case. It merely determined that the case had been improperly placed on the docket by the appellee, and that, being improperly there, it was stricken off or dismissed.

The supersedeas having been determined by the judgment of the Supreme Court in 1840, and no execution having issued until 1847, the plaintiff could not have execution without first reviving his judgment. And the averments of the petition exclude the supposition that this had been done or the judgment kept alive by the seasonable issuance of execution.

The judgment must therefore be reversed and this proceeding he dismissed.

Reversed and dismissed.