Opinion
No. 122.
March 1, 1917.
Error from District Court, Orange County; A. E. Davis, Judge.
On motion to vacate and modify judgment. Motion denied and overruled.
For former opinion, see 189 S.W. 546.
John G. Tod, and Mark G. Fakes, both of Houston, for plaintiff in error. Holland Holland, of Orange, for defendants in error.
On November 2, 1916, this cause was finally decided by this court, as shown by its original opinion herein filed ( 189 S.W. 546), and there having been no motion for rehearing filed by any party herein, within the time provided by law and the rules of this court, the mandate of this court was issued upon said judgment, as provided by law, and, after the issuance of such mandate, the defendants in error herein, A. M. H. Stark and D.C. Bland, filed in this court a motion to vacate the judgment of this court, upon which such mandate issued, and to set said judgment aside, in which motion it is alleged that said judgment of this court was and is void. Said motion praying this court to vacate its said judgment and set the same aside was filed in this court December 20, 1916. In the meantime, and before this court could reach and act upon said motion of said defendants in error, said defendants in error, Stark and Bland, filed another motion, praying this court to recall its mandate, which was issued pending their motion to vacate and set aside the judgment of this court, until such time as this court might reach and act upon said motion of defendants in error to set aside and vacate said judgment. Said motion to recall said mandate was filed in this court February 5, 1917, and, after due consideration of said motion praying the recall of said mandate, said motion was granted, and it was provided by this court, in ordering the recall of said mandate, that the same was only recalled temporarily, and until this court might act upon and decide the motion of said defendants in error to set aside and vacate said judgment in this cause above referred to.
On February 14, 1917, the motion of defendants in error praying this court to vacate and set aside its said judgment in this cause was submitted on oral argument by all parties thereto, and this court, after due consideration of said motion to vacate and set aside said judgment rendered in this cause on November 2, 1916, has reached the conclusion that the same should be denied and overruled, and it is so ordered.
It is further considered by this court that its said order entered on February 5, 1917, recalling said mandate in this cause, ought to be and the same is in all things here now vacated and set aside, and the clerk of this court is directed to reissue said mandate to the district court of Orange county, Tex., as the same was originally issued in this cause.