Annotated, 161, decided by the Supreme Court of Appeals of West Virginia, and strongly relied on by appellee, the railway company by permission of the city had torn up a street in order to place its track thereon, the ordinance granting such permission requiring that the railway company should put the street in good order. This the railway company refused to do, and it was held that it could be compelled to do so through a mandatory injunction. The railway company had torn up the street and the West Virginia court held that the company had created a public nuisance, and that under the common law, the statutes of the State, and the ordinance of the city the railroad company owed the duty to the public to place in order a public highway torn up by it. It is not intimated in that or any other opinion that a contract will be enforced between a city and a private corporation merely because a failure to do so may indirectly affect the public interest.

Appellant is a private corporation owing no duty to the public so far as the streets of Dallas are concerned, and in considering the propriety of granting a mandatory injunction to compel it to repair Main street, in Dallas, its contract must be viewed as would the contract of an individual. The defects in the street were not caused through its agency, and if a nuisance has arisen through a failure to repair, its inaction does not furnish a basis for an application to a court of equity for relief. It owes no more duty to the public in connection with this contract than any individual would owe in any other contract, and there is a full and adequate remedy at law for any injury resulting from the breach of the contract. The duty to keep the streets in order rests upon appellee, and where it has contracted with a corporation or individual to perform this duty for it, its duty remains the same, and it must in case of a breach of the contract to make repairs find redress as anyone else would in case of such breach.

The law applying to an ordinary writ of mandamus applies to the writ given the dubious and somewhat contradictory title of "mandatory injunction," and in the case of Street Railway v. State, 90 Texas, 520, it was held that a corporation could not be compelled by mandamus to perform an act not made incumbent on it by its charter or the statutes of the State. The decision quotes approvingly from Redfield on Railway as follows: "Where the charter of a corporation or the general statute in force and applicable to the subject imposes a specific duty, either in terms or by fair and reasonable construction and implication, and there is no specific or adequate remedy, the writ of mandamus will be awarded." The court said: "The Legislature in creating a corporation has the power to give it an option to do or not to do the acts which it is authorized to perform. On the other hand, it may impose upon the corporation, as the law of its creation, the obligation to exercise to their fullest extent the powers which are granted. In either case, the proposed corporators may accept or not; and in the latter, if they do accept, they may be compelled by mandamus to perform the duties so imposed." In other words,

the decision holds that a private corporation can not be compelled by mandamus to perform a duty not imposed by general statute or the terms of its charter. It is not claimed that the writ is sought in this case to compel a statutory or charter duty.

The judgment is reversed and the cause dismissed.

Writ of error refused.

Reversed and dismissed.

J. H. AND A. H. BURNS V. J. M. SKELTON.

Decided May 14, 1902.

Judgment-Dormancy-Nunc pro Tunc Entry.

Where a judgment of a justice court was rendered but no entry of it was made and no execution issued thereon for more than ten years, it wholly ceased to have any effect and could not be revived by an action of sire facias, and a nunc pro tune entry of it by order of the justice court more than ten years after its rendition being also of no effect, a mandamus to compel the issuance of execution on the judgment will be refused.

Appeal from Dallas. Tried below before Hon. T. F. Nash.

Morris & Crow, for appellants.

Hielrant & Scott, for appellee.

NEILL, ASSOCIATE JUSTICE.-This is an application for a writ of mandamus brought by appellants to compel appellee, J. M. Skelton, justice of the peace of Precinct No. 1 of Dallas County, to issue an execution on a judgment rendered in the Justice Court of his precinct on July 24, 1891, for $147.40 in favor of appellants against R. T. Smith, but of which no entry was made until the 31st day of August, 1901, when it was entered nunc pro tunc as of the day (July 24, 1891) when it was rendered. No execution was ever issued upon the judgment. After the nunc pro tunc entry of the judgment, appellants applied to appellee, the justice of the court in which the judgment was rendered, for a writ of execution, which he declined and refused to issue.

The application of appellants to the District Court to compel him to issue such execution upon hearing was refused, and from its judgment refusing to award the writ of mandamus prayed for, this appeal is prosecuted.

The appellants contend that the judgment was not in force and operative as a judgment until the 30th day of August, 1891, when it was entered on the docket or minutes of the court, and that until that date no execution could have been issued.

"On the 11th day after the rendition of any final judgment, if the case has not been appealed and no stay of execution has been granted, it shall

be the duty of the justice to issue an execution for the enforcement of such judgment and the collection of the costs." Rev. Stats., art. 1661. "If no execution is issued within twelve months after the rendition of the judgment, the judgment shall become dormant, and no execution shall issue thereon unless such judgment be revived." Rev. Stats., art. 1664.

"A judgment in any court of record within this State, where execution has not issued within twelve months after the rendition of the judgment, may be revived by scire facias, or an action of debt brought thereon within ten years after the date of judgment, and not after."

"The rendition of a judgment is the judicial act of the court in pronouncing the sentence of the law upon the facts in controversy as ascertained by the pleadings and the verdict. The entry of a judgment is a ministerial act which consists in spreading upon the record a statement of the final conclusion reached by the court in the matter, thus furnishing external and incontestable evidence of the sentence given, and designed to stand as a perpetual memorial of its action. It is the former, therefore, that is the effective result of the litigation. In the nature of things, a judgment must be rendered before it can be entered. And not only that, but though the judgment be not entered at all, still it is none the less a judgment. The omission to enter it does not destroy it, nor does its vitality remain in abeyance until it is put upon the record. The entry may be supplied, perhaps after the lapse of years, by an order nunc pro tunc." Black on Judg., sec. 106.

Except as to the rights of third parties, a judgment nunc pro tune is retrospective, and has the same force and effect, to all intents and purposes, as if it had been entered at the time when the judgment was oroginally rendered. Freem. on Judg., sec. 67; Nabers v. Meredith, 67 Ala., 330; Graham v. Lynn, 39 Am. Dec., 493; Rugg v. Parker, 9 Gray, 206; Chichester v. Cande, 3 Cow., 39, 15 Am. Dec., 238; Davis v. Shaver, 91 Am. Dec., 92.

An execution is authorized for the purpose of making effectual the judgment or order of the court. It must, of course, follow that plaintiff may have it issued as soon as the time comes when he is entitled to the satisfaction of his judgment or decree, and this is, as we have seen in a case like this, "on the 11th day after the rendition of final judgment." Freem. on Ex., sec. 24. If a judgment is rendered a writ of execution may issue before its formal entry (Graham v. Lynn, supra); and as between the parties a nunc pro tunc entry of the judgment so operates as to save the execution which had theretofore been issued. Doughty v. Meek, 105 Iowa, 16; 74 N. W. Rep., 744, 67 Am. St. Rep., 282. The entry of a judgment nunc pro tunc presupposes the actual rendition of a judgment at the prior date stated in such entry.

As is seen, the judgment was rendered on the 24th day of July, 1891, and though execution could have been issued upon it within the time prescribed by law, none has ever been issued thereon. It became dormant, had not been revived when the nunc pro tunc entry was made,

nor was it revived by such entry, and ten years having elapsed after the date of its rendition, it could not be revived, or an action of debt brought thereon afterwards. The judgment was not only dormant, but dead, and could not be resurrected when appellant applied to the appellee for the execution. Had the application been granted, the execution would bave been without a judgment to support it, and absolutely void. Therefore the court did not err in refusing to compel the appellee by mandamus to issue the execution.

A tenant may become the purchaser of the land at a judicial sale of it for taxes, and may assert the title so acquired without coming within the rule inhibiting a tenant from denying the title of the landlord, since a tenant is not charged with the duty of protecting the land from judicial sales.

2.—Tax Sale—Irregularities-Collateral Attack.

In a proceeding to foreclose a tax lien on land of a nonresident served by publication, failure of the court to appoint an attorney for the defendant and to file a statement of the evidence, as required by the statute, does not render the judgment subject to collateral attack, but can be taken advantage of only by appeal or bill of review. Rev. Stats., art. 1346.

3. Same-Notice of Sale.

So the failure of the sheriff in such a case to notify the nonresident land owner or his attorney of the sale, no attorney having been appointed, will not affect the validity of the sale.

4. Same-Equitable Relief-Inadequacy of Price.

Equity will not afford relief against a sale under foreclosure of a tax lien for mere inadequacy of the consideration paid.

5.-Same-Order of Sale.

Where in trespass to try title plaintiff alleged that defendant claimed under a foreclosure decree and order of sale, it was not necessary for defendant to prove the order of sale, as it is not necessary that an allegation in plaintiff's pleading should be offered in evidence against him.

Appeal from Menard. Trial below before Hon. J. W. Timmins.

Stapleton & Meek, for appellant.

Wright & Wynn and S. W. Ainsworth, for appellee.

JAMES, ASSOCIATE JUSTICE.-The second amended original petition consists first of the ordinary allegations in trespass to try title. In addition, plaintiff Crosby alleged that defendant set up a claim to the land under a sheriff's deed by virtue of a sale under a decree and order of

sale from the District Court of Menard County, the judgment rendered on November 10, 1897, in favor of the State against appellant for $5.40, the taxes on the 320 acres in question for the year 1895, together with interest and costs amounting in all to $25.70. That the judgment was had upon service by publication, upon affidavit of the county attorney that the residence of defendant was unknown. That defendant not appearing when the case was called for trial the cause was proceeded with, no attorney being appointed by the court to represent the absent defendant, and judgment was rendered without any statement of the evidence being prepared and filed by the judge with the papers of the cause. That no notice was given of the sale to anyone by the sheriff, his return reciting "residence unknown,-no attorney." That at the sale Bonnowsky became the purchaser for $25.70, which he paid and for which he received the sheriff's deed for the land. That the land was reasonably worth $1000 at the time of the sale and $1500 at this time. That said tract had been regularly rendered for taxes and taxes paid for many years prior to and including 1895 by his agent Eggleston, at Austin, who died in 1895, whose partner Goldbeck, after the rendition for that year, neglected to pay such taxes, of which, residing in New York, plaintiff was totally ignorant, also ignorant of said tax suit. That the judgment was irregular and voidable as to him because he was not served with citation and no attorney appointed to represent him and no statement of facts filed in the cause, and the purchase by Bonnowsky should be set aside because it was made for a grossly inadequate consideration and plaintiff had no notice, nor was he given any notice of the sale, or that his land had been levied on by the State for the purpose of sale; that Bonnowsky had full knowledge and notice of plaintiff's ownership of the land and of its rendition in his name and payment of taxes by him, and that he had the land inclosed in his pasture, and that for some years prior thereto leased the land from plaintiff through his agents aforesaid and was estopped to deny his landlord's title.

That the foregoing facts and circumstances under which Bonnowsky purchased the land, together with the grossly inadequate price, were sufficient to put him on inquiry and notice of the irregularities in procuring the judgment and in said sheriff's sale. That plaintiff has repeatedly tendered to him the amount of his bid, $25.70, and now brings and tenders the same. That he is a nonresident and had no knowledge of the proceedings and of said sale until shortly before the institution of this suit, and immediately upon learning the same he instituted proceedings. He prayed that the sale be declared void and canceled, and that he have judgment for the title and possession and damages, costs,

etc.

There was a general demurrer, and special exceptions. The judgment recites that defendant's exceptions were sustained, "and that those parts of the petition to which the exceptions were made and sustained be stricken out and that the cause stand for trial upon the petition as a petition in trespass to try title." The parts of the petition to which