National Bank of Commerce v. Kenney ( 1906 )

At a former term of this court the judgment was affirmed in part and reversed and remanded in part. After more than twelve months had elapsed from the overruling of a motion for a rehearing in this case, the National Bank of Commerce, the plaintiff in error, applied to the Clerk of this court for a mandate, which the Clerk, being doubtful as to authority, declined to issue. This motion is to compel him to issue the mandate upon the payment of the costs.

The statute which relates to this matter reads in part as follows: "Art. 976a. No mandate shall be taken out of the Supreme Court, or Courts of Civil Appeals, and filed in the court wherein said cause originated unless the same is so taken within the period of twelve months after the rendition of final judgment of the Supreme Court, or Courts of Civil Appeals, or the overruling of a motion for rehearing. The provisions of this act shall only apply to cases which are by the Supreme Court, or Courts of Civil Appeals, reversed and remanded and if any cause is reversed and remanded by said Supreme Court, or Courts of Civil Appeals, and the mandate is not taken out within twelve months as herebefore provided, then upon the filing in the court below of a certificate of the clerk of the Supreme Court, or Courts of Civil Appeals, that no mandate has been taken out the case shall be dismissed from the docket of said lower court." (Laws 1901 p. 123). We are of opinion that the act does not apply to a case in which the judgment has been in part affirmed, and in part reversed and as to the latter the cause remanded. Therefore the motion to issue the mandate is granted.