
    Lubbock, Clerk, v. Vince, Adm’r.
    Where a cause was remanded under the first section of the act of 1837, amending the judiciary laws of the Republic, (4cts of 1837, p. 94,) in order that the facts might be fully established and set forth, the appeal and consequently the supersedeas were determined.
    An original execution cannot be issued after twelve months without first reviving the judgment.
    Appeal from Harris. On the 4th day of August, 184-7, the appellee filed his petition in the District Court praying for a mandamus to compel the appellant, who was clerk of that court, to issue an execution upon a judgment rendered in the same court at its Spring Term, 1839, in favor of the appellee’s intestate. 'The petition recited the judgment and alleged that an appeal was taken from it to the Supreme -Court; that on the 14th day of April, 1847, the Supreme Court dismissed the appeal, leaving the judgment of the District Court in full force, and that the clerk refused to issue execution, concluding with a prayer for a mandamus.
    
    In answer to the petition the clerk exhibited two mandates of the Supreme ■Court, the first bearing date on the 15th of July, 1S44, and the second on the 2Gth of May, 1847; the first in obedience to a judgment of the court rendered on the 23d of January, 1840, and the second upon a judgment rendered on the 14th day of April, 1847. The first stated that the cause came on to be heard, and that “it appearing to the court that the facts in the case are not stated in a manner sufficiently full and clear to enable this court to give judgment, it is ■ordered and adjudged that the said cause be, and the same is hereby, remanded to the District Court of the county of Harrisburg (now county of Harris) in order -that the facts may be fully and clearly established and set forth.” The second mandate stated that “this cause coming on to be heard on the trans-cript of the record of the court below, and the same being considered upon the motion of counsel for appellee to dismiss, it is ordered, adjudged, and -decreed that the appeal be dismissed from the docket, having been improperly .placed on the same. The appellee having filed the record in this court, it is ■further ordered that he pay all costs,” &c. By reason of these mandates the •clerk alleged that the plaintiff was not entitled to have execution upon the .judgment. The plaintiff excepted to the answer. The exceptions were overruled. There was trial upon other issues which resulted in favor of the plaintiff, a peremptory mandamus was awarded, and the clerk prosecuted this writ of error.
    Franklin, for appellant.
    
      Webb and Gray, for appellee.
   Wheeler, J.

It might be a matter of some difficulty to determine what was the precise effect of the judgment of the Supreme Court rendered in 1840, evidenced by its mandate. It at least had the effect to terminate the appeal. The “ cause ” was “ remanded ” to the District Court. It was then no longer a cause depending in the Supreme Court. The appeal and consequently the supersedeas were thereby determined. Thus much at least is clear, and is sufficient for the disposition of the present case.

The judgment of this court rendered in April, 1847, evidenced by the second -mandate in the record, does, we think, in no way affect the case. It merely determined that the case had been improperly placed on the docket by the appellee, and that, being improperly there, it was stricken off or dismissed.

The supersedeas having been determined by the judgment of the Supreme Court in 1840, and no execution having issued until 1847, the plaintiff could not have execution without first reviving his judgment. And the averments of the petition exclude the supposition that this had been done or the judgment kept alive by the seasonable issuance of execution.

The judgment must therefore be reversed and this proceeding he dismissed.

Reversed and dismissed.  