Of the various grounds on which the petition claimed relief against the judgment, the only one which was held valid by the court below was that the judgment was dormant. The appellee has not sought to revise the action of the court in sustaining the demurrer to so much of the petition as set up other matters, and no question as to the correctness of this action is properly before us.
The averments of the petition, bearing on the question of the dormancy of the judgment, are, in substance, that the judgment was rendered in the District Court in August, 1871, and was, on appeal to this court, in all tilings, affirmed on February 24, 1873; but that execution did not issue thereon until October 21, 1874,which, it is .claimed, was not within one year from the first day upon which an execution could by law have issued. Evidently, the petition assumes that execution could by law have issued immediately on the judgement of affirmance. The statute, however, says that the clerk shall proceed to issue execution “ on the receipt of the mandate of the Supreme Court.” (Paschal’s Dig., art. 1571.) The petition does not show when the mandate was so received, nor does it show when it issued or should have issued; nor are any facts stated from which the date could be inferred at which execution" might, in the regular course of law, have issued.
*565From the answer and exhibits of the defendant, which were before the court, and, as well as the petition, constituted the basis of the judgment, some additional facts appear, viz.: That on July 21, 1873, the clerk of the Supreme Court proceeded to prepare a mandate to be sent down to the District Court, which, however, was held up, as there was a motion for rehearing made by Stillman; that this motion was overruled on October 14, 1873; that the term of this court at which these proceedings were had ended, by adjournment, on ^November 28,1873; and that afterwards (date not stated) the clerk of the Supreme Court forwarded the mandate prepared as aforesaid, which was received and filed in the District Court on February 12, 1874.
Our opinion is, that the facts do not show that the mandate either did issue or should have issued before the close of the term of this court at which the judgment was affirmed; nor that the date at which execution could have issued was any earlier than that at which the mandate was filed, or, at all events, that it was any earlier than a reasonable time for procuring and forwarding the mandate, after the close of the term.
Until the end of the term, the judgments of this court were within its control, and liable to be set aside, even after a motion for rehearing had been overruled. We are aware of no statute or rule of court which authorized the issuance of the mandate as a matter of right, and without a special order therefor, before the close of the term. The practice is now regulated by statute, and in accordance with the ordinary course of procedure in appellate courts; and what is believed to have been the practice in this court, as organized under the Constitution of 1845, requires an order of the court to .authorize the issuance of the mandate before the close of the term. (Laws 14th Leg., 51; Phillips Practice, 208, 218; The Bank of U. S. v. Swan, 3 Pet., 68.)
But even if the issuance of the mandate before the end of the term, and without a special order, was authorized by the *566practice of the court at that time, (1873,) it can hardly he contended that this was anything more than a privilege of which the appellee might take advantage, if he saw fit to pay the clerk the costs adjudged against the appellant, and take the risk of a subsequent rehearing and revocation of the mandate. The clerk is not compelled to issue the mandate until the costs in this court have been paid. (Paschal’s Dig., art. 1568.)
It could scarcely be that the earliest date at which this privilege could have been claimed should, by operation of law, become the date at which execution might issue, .instead of the date fixed by the statute, to wit, the actual filing .of the mandate. Indeed, no such position has been taken in the brief of appellant; but it is simply claimed that the overruling the motion for a rehearing was the date of the judgment, implying that it was also the date at which execution might issue. This position has not been supported by authority, and is, we think, untenable.
There is nothing in the record which shows that the execution was not issued within a year from the first day on which it could by law have issued, or that the judgment was dormant at the time When execution actually issued. The execution not only issued within a year from the filing of the mandate, but also within a year from the end of the term at which the judgment was affirmed, and, prima facie at least, the judgment had not lost its validity.
But even if the judgment were dormant, the defendant prayed, in the alternative, that it might be revived; and the court, having the parties before it, should have granted the relief asked for, unless there existed some legal objection to the validity of the judgment. (See cases cited by appellant; Cyrus v. Hicks, 20 Tex., 486; Bourke v. Vanderlip, 22 Tex., 223; Willis v. Gordon, Id., 243.)
The judgment is reversed and the cause remanded.
Reversed and remanded.