Dignowity v. Court of Civil Appeals

On April 25, 1917, the Court of Civil Appeals of the Fourth Supreme Judicial District of Texas reversed a judgment of the District Court of Bexar County, in favor of the relators Hallie B. Dignowity et al., against the respondent Imogene T. Hambleton, for eleven thousand five hundred and thirty dollars, and remanded the cause for a new trial. Motions for rehearing were overruled in the Court of Civil Appeals on June 30, 1917. The respondent, Imogene T. Hambleton, thereupon presented her petition for writ of error to the Supreme Court, and on February 6, 1918 the writ was denied. On August 20, 1918, the clerk of the Court of Civil Appeals issued a certificate that no mandate had been taken out on the judgment reversing and remanding said cause, and the Honorable Court of Civil Appeals having denied a motion to recall the mandate, this proceeding was begun to compel, by mandamus, the recall of said certificate. The right of relators depends on the construction of that portion of article 1559, R.S., which provides: "In cases which are, by the supreme court, or courts of civil appeals, reversed and remanded, no mandate shall be taken out of either of said courts and filed in the court wherein said cause originated, unless such mandate shall be so taken out within the period of twelve months after the rendition of final judgment of the supreme court, or court of civil appeals, or the overruling of a motion for rehearing." *Page 615 In our opinion, the twelve months allowed by the statute for taking out the mandate runs from the date of the judgment of the Supreme Court, in a case reversed and remanded by a court of civil appeals, and in which a writ of error is denied. The result of construing article 1559 as requiring the mandate to issue, in reversed and remanded cases, within twelve months from the judgment of reversal of from the order overruling a motion for rehearing in the Court of Civil Appeals, might be to authorize the dismissal of a cause in the trial court, for the non-issuance of mandate, while it was still pending on petition for writ of error to the Supreme Court. For, the Supreme Court might not dispose of the petition for writ of error within twelve months from the date of the last action of the Court of Civil Appeals. No such result could have been intended by the Legislature. The evident purpose of the statute was to allow twelve months from the rendition of a final judgment for the issuance of the mandate We can see no good reason for declaring the judgment of the Court of Civil Appeals to be the final judgment meant by the statute, while subject to review by this court, when it is the settled law that an appeal, with or without supersedeas, operates to continue a pending suit, so as to deprive the judgment appealed from of that finality "necessary to entitle it to admission in evidence in support of the right or defense declared by it." Texas Trunk Ry. Co. v. Jackson Bros., 85 Tex. 608,22 S.W. 1032; Kreisle v. Campbell, 32 S.W. 851; Waples-Platter Grocer Co. v. T. P. Ry. Co., 95 Tex. 489, 59 L.R.A, 353,68 S.W. 265. Article 7764, R.S. allows the plaintiff, who recovers land, "the term of one year after the date of judgment" to pay the amount adjudged to the defendant who has made improvements in good faith, and article 7765, R.S. allows "six months after the expiration of said year" to the defendant to pay the plaintiff the value of the land without the improvements, when the plaintiff neglects for a year to pay the amount adjudged to the defendant. It is held that neither the term of one year nor the additional term of six months, as allowed by these articles, begins to run so long as an appeal to the Court of Civil Appeals or an application for writ of error to this court is pending, because the judgment is thereby deprived of the necessary character of finality. Fain v. Nelms, 199 S.W. 890. In like manner, when a decree of the trial court expressly allows a party a certain time thereafter within which to perform an act, such time does not begin to run until denial of a writ of error, in cases where application therefor is made to this court. House v. Moore, 204 S.W. 382. The mandate in this case having been issued within less than a year from the denial of the writ of error it ought to have been recalled, and hence the mandamus applied for has been awarded by this court. *Page 616 ON MOTION TO ENFORCE PREVIOUS ORDER.