Opinion
Application No. 17808.
Decided November 26, 1930.
1. — Reversal — Mandate — Dismissal in Trial Court.
Judgment for plaintiff having been reversed and remanded on appeal, the trial court properly dismissed plaintiffs' suit on receipt of the Clerk's certificate showing that no mandate had been taken out within twelve months from the final judgment. (Rev. Stats., Art. 1867.) And this regardless of whether mandate had been later issued or properly so.
2. — Same.
Approving the judgment of the Court of Civil Appeals ( 32 S.W.2d 209) affirming the order of dismissal of this case by the trial court, the application for writ of error is here refused. The Davy Burnt Clay Ballast Co. v. St. Louis Southwestern Ry. Co. recovered a judgment which on defendant's appeal was reversed and remanded. ( 288 S.W. 855.) Plaintiff's suit being dismissed in the trial court for failure to take out mandate within twelve months from the final judgment, and this being affirmed on his appeal to the Court of Civil Appeals, ( 32 S.W.2d 209) appellant applied to the Supreme Court for writ of error which is here refused in an opinion per curiam.
Seay, Seay, Malone Lipscomb, for plaintiff in error.
Thompson, Knight, Baker Harris, for defendant in error.
The judgment of the Court of Civil Appeals affirming the order of dismissal of the trial court is clearly correct. Revised Statutes, Article 1867, plainly directed the District Court to dismiss this case, for the reason that no mandate had been taken out of the Court of Civil Appeals within one year after the final judgment in that court. The questions as to whether or not the mandate should have issued, as it did issue in this case, out of the Court of Civil Appeals after the expiration of one year from its original final judgment, and the proper construction of Article 1775 Revised Statutes, relating to the Supreme Court we find it unnecessary to pass upon or discuss.
For the reasons stated, the application for writ of error is accordingly refused.