Aycock v. Clark

• Decision Date: 07 February 1901
• Citation: 60 S.W. 665
• Parties: AYCOCK et al. v. CLARK, District Judge.
• Court: Texas Supreme Court

60 S.W. 665

AYCOCK et al. v. CLARK, District Judge.

Supreme Court of Texas.

February 7, 1901.

Mandamus by the people, on the relation of B. L. Aycock and others, to compel John H. Clark, district judge, to enter a certain judgment in lieu of one entered by him. Demurrer to the petition sustained.

C. S. Robinson and B. L. Aycock, for relator. Upson, Newton & Ward, for respondent.

GAINES, C. J.

This is an original action for a writ of mandamus to compel the Honorable John H. Clark, judge of the Thirty-Seventh district of the state of Texas, to enter a certain judgment in a cause tried in his court in lieu of a judgment rendered by him and entered upon the minutes thereof.

The petition states the facts in great detail, but we deem it sufficient, for the purposes of this opinion, to set forth the nature of the suit which was tried in the district court, together with the verdict and judgment in which the trial resulted. The suit was brought by Emma Aycock, joined by her husband, against the San Antonio Brewing Association, the Galveston, Harrisburg & San Antonio Railroad Company, the Alamo Heights Railroad Company, and the American Surety Company to recover damages for the construction and operation of a railroad for carrying freight over the tracks of Alamo Heights Railroad Company, a street-railway company, along the streets and sidewalks adjacent to certain lots in the city of San Antonio owned by the wife, and to enjoin the use of the track for that purpose. The American Surety Company was dismissed from the suit. There was a trial before a jury, and the following verdict was returned: "We, the jury, find a verdict for the defendants the San Antonio Brewing Association, the Galveston, Harrisburg & San Antonio Railroad Company, and the American Surety Company of New York. We further find a verdict in favor of the plaintiffs against the defendant the Alamo Heights Railroad Company for the sum of seven hundred and fifty dollars." Thereupon the plaintiffs remitted the damages except for the sum of one dollar, and presented to the trial judge, the respondent herein, a decree in their favor against all the defendants, enjoining the use of its track for transportation of freight, and requiring the defendant the Alamo Heights Railroad Company to restore its track so as not to infringe upon the sidewalk adjacent to the lots of the plaintiffs, and asked that it be entered as the decree in the cause. This the court declined to do, and entered a judgment against the defendant the Alamo Heights Railroad Company for the sum of one dollar,—the amount of damages awarded by the jury, less the remittitur, —and for costs of suit. The prayer of the petition filed in this court is that a writ of mandamus be awarded "commanding the said district judge to perform his statutory ministerial duty by entering a judgment declaring the said railroad a nuisance, and ordering the same removed—that is to say, the tracks, poles, and wires—from off the plaintiffs' said lots 5 and 6, described in plaintiffs' petition."

In our opinion, there are two insuperable objections to granting the relief prayed for in this case. In the first place, the act which we are asked to command the officer to perform is strictly judicial in its character, and in such a case a mandamus cannot be awarded. A judge may be commanded to proceed to the trial of a case. So, also, he may be compelled to enter a judgment upon the verdict of a jury, where he has refused to enter any judgment whatever. Lloyd v. Brinck, 35 Tex. 1. But...