Ætna Club v. Jackson

• Decision Date: 29 June 1916
• Docket Number: (No. 645.)
• Citation: 187 S.W. 971
• Court: Texas Court of Appeals
• Parties: ÆTNA CLUB v. JACKSON.

187 S.W. 971

ÆTNA CLUB v. JACKSON.

(No. 645.)

Court of Civil Appeals of Texas. El Paso.

June 29, 1916.

Original application for mandamus by the Ætna Club against Dan M. Jackson. Application granted.

Weeks & Owen, of El Paso, for relator. P. H. Marcum and C. W. Croom, both of El Paso, for respondent.

HARPER, C. J.

This is an original application for writ of mandamus to require the trial judge to fix the amount of bond necessary to supersede the final judgment granting an injunction restraining appellant from operating its club under substantially the following allegations: Upon April 25, 1916, respondent, as judge of the Thirty-Fourth district, issued a temporary restraining order, enjoining defendant from dispensing liquor, and from keeping liquor upon its premises for sale, until May 1, 1916, at which time the court heard the cause upon its merits, and upon the verdict of a jury rendered judgment, perpetuating said temporary injunction, and made the same final. A motion for new trial was overruled, whereupon the Ætna Club filed motion, praying that the court enter an order fixing the amount of supersedeas bond necessary to suspend the execution of the said judgment, pending appeal; that the said Jackson, judge of the Thirty-Fourth district, in open court refused to fix any amount of bond, and refused to enter any order permitting defendant to supersede the said judgment and though the defendant offered to file any bond required. The respondent answered by exceptions to the sufficiency of the petition, and specially pleaded that relator was found guilty by a jury of selling liquor without license, that upon the verdict of the jury, the temporary order was perpetuated, and that in the exercise of his judicial discretion, he refused to fix bond prayed for.

The purpose of this writ is to require some inferior court or officer, etc., to do some particular thing therein specified, and which appertains to their office or duty, in aid of this court's jurisdiction. Article 2078, Revised Civil Statutes 1911, provides that:

"An appeal may be taken to the Court of Civil Appeals from every final judgment of the district court in civil cases."

Article 2084 provides how an appeal may be perfected. Article 2097, Revised Statutes, reads:

"The appellant or plaintiff in error, as the case may be, shall execute a bond, with two or more good and sufficient sureties, to be approved by the clerk, payable to the appellee or defendant in error, in a sum at least double the probable amount of the costs of the suit in the Court of Civil Appeals, Supreme Court and the court below, to be fixed by the clerk, conditioned that such appellant or plaintiff in error shall prosecute his appeal or writ of error with effect, and shall pay all costs which have accrued in the court below, and which may accrue in the Court of Civil Appeals and the Supreme Court."

Article 2098, Revised Statutes, reads:

"Where the appellant or plaintiff in error is unable to pay the costs of appeal, or give security therefor, he shall nevertheless be entitled to prosecute his appeal; but, in order to do so, he shall be required to make strict proof of his inability to pay the costs, or any part thereof. Such proof shall be made before the county judge of the county where such party resides, or before the court trying the case, and shall consist of the affidavit of said party, stating his inability to pay the costs; which affidavit may be contested by any officer of the court or party to the suit, whereupon it shall be the duty of the court trying the case, if in session, or the county judge of the county in which the suit is pending, to hear evidence and to determine the right of the party, under this article, to his appeal."

Article 2099, Revised Statutes, reads:

"When the bond, or affidavit in lieu thereof, provided for in the two preceding articles, has been filed and the previous requirements of this chapter have been complied with, the appeal or writ of error, as the case may be, shall be held to be perfected."

Article 2100, Revised Statutes, reads:

"The bond, or affidavit in lieu thereof, provided for in the three preceding articles, shall not have the effect to suspend the judgment, but execution shall issue...