Underhill v. Thomas

24 Tex. 283 | Tex. | 1859

Roberts, J.

The statute requires the clerk of the Supreme Court to certify the judgments of the Supreme Court, to the courts from which the causes were brought. (O. & W. Dig. 415.) It does not prescribe the time when this shall be done. The mandate, in this case, was filed during the term, and after the first day thereof. The judgment by default, was taken the next day after the filing.

The plaintiffs must be held to have known that their cause was disposed of in the Supreme Court, and was therefore liable to be sent into the District Court for its action. Upon them, process had been served; and when the mandate was filed in the District Court, the case stood as it had done before the first judgment was rendered. They were in court, through the process served on them. They were at liberty to make any defence which they had. Not having made any, the plaintiffs below had a right to discontinue as to those not served with process, and take their judgment by default as to those served. Judgment affirmed with damages.

Affirmed with damages.