Dignowity v. Fly

Decision Date26 March 1919
Docket Number(No. 3144.)
Citation210 S.W. 505
PartiesDIGNOWITY et al. v. FLY et al.
CourtTexas Supreme Court

GREENWOOD, J.

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 $11,530, 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."

In our opinion, the 12 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 12 months from the judgment of reversal, or 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 nonissuance 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 ...

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16 cases
  • State ex rel. Bostian v. Ridge
    • United States
    • Missouri Supreme Court
    • July 2, 1945
    ...Circuit Judge, 202 Mich. 61, 167 N.W. 934; Thorndale Mercantile Co. v. Continental Gin Co., 241 S.W. 260; Dignowity v. Court of Civil Appeals, 110 Tex. 613, 210 S.W. 505, 223 S.W. 165; Murphy v. Farmers' Bank, 11 S.W. (2d) 1066. (5) Relator as trustee in bankruptcy of Bessie Eichenberg has ......
  • State ex rel. Bostian v. Ridge
    • United States
    • Missouri Supreme Court
    • July 2, 1945
    ... ... 343, 89 S.W.2d 662; St ... Louis v. Boyce, 130 Mo. 572, 31 S.W. 594; Boyce v ... Osceola Circuit Judge, 79 Mich. 154, 44 N.W. 343; ... McBride v. Chippewa Circuit Judge, 202 Mich. 61, 167 ... N.W. 934; Thorndale Mercantile Co. v. Continental Gin ... Co., 241 S.W. 260; Dignowity v. Court of Civil ... Appeals, 110 Tex. 613, 210 S.W. 505, 223 S.W. 165; ... Murphy v. Farmers' Bank, 11 S.W.2d 1066. (5) ... Relator as trustee in bankruptcy of Bessie Eichenberg has no ... interest in the estate of the deceased. (6) Respondent was ... vested with jurisdiction to determine ... ...
  • Edwards Aquifer Auth. v. Chemical Lime
    • United States
    • Texas Supreme Court
    • June 26, 2009
    ...R.S., ch. 54, § 1, 1901 Tex. Gen. Laws 122, 123 (repealed 1978). For examples of the application of these rules, see Dignowity v. Fly, 110 Tex. 613, 210 S.W. 505, 506 (1919); Davy Burnt Clay Ballast Co. v. St. Louis Sw. Ry. Co., 32 S.W.2d 209, 211 (Tex.Civ.App.-Dallas 1930), writ ref'd, 119......
  • Bohart, Matter of, 83-1680
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • October 9, 1984
    ...by the statutes governing the issuance of mandates nor that required to support a finding of res judicata, citing Dignowity v. Fly, 110 Tex. 613, 210 S.W. 505 (Tex.1919), and Fidelity Union Casualty Company v. Hanson, 53 S.Ct. 12, 77 L.Ed. 522, 44 S.W.2d 985 (Tex.Comm.App.), cert. denied, 2......
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1 books & journal articles
  • CHAPTER 8 Staying Execution and Superseding the Judgment
    • United States
    • Full Court Press Practitioner's Guide to Civil Appeals in Texas
    • Invalid date
    ...51.1(b) ("When the trial court clerk receives the mandate, the appellate court's judgment must be enforced."); see also Dignowity v. Fly, 210 S.W. 505, 506 (Tex. 1919) (holding that court of civil appeals' judgment is not final while subject to review by the Texas Supreme Court).[139] Tex. ......

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