Ewing v. Cohen

• Decision Date: 13 March 1885
• Docket Number: Case No. 2038.
• Parties: W. J. EWING v. JACOB COHEN.
• Court: Texas Supreme Court

63 Tex. 482

W. J. EWING

v.JACOB COHEN.

Case No. 2038.

Supreme Court of Texas.

Mar. 13, 1885.

APPEAL from Johnson. Tried below before the Hon. A. J. Hood.

The opinion states the case.

J. W. Ewing, for himself, cited: Jacob Porter v. Henry Klahn, W. W. Con. Rep., §§ 528 and 529; High, Ex. Leg. Rem. (2d ed.), secs. 188, 189, 190; People v. Weston, 28 Cal., 639;Cariaga v. Dryden, 29 Cal., 307;Lewis v. Barclay, 35 Cal., 213;Little v. Morris, 10 Tex., 263;Durrett v. Crosby, 28 Tex., 687.

C. W. Jodon, for appellee, cited: High, Extra. Rem., p. 190, sec. 251; citing State v. Judge, 4 Rob. (La.), 227; In reTurner, 5 Ohio, 542;Rhodes v. Craig, 21 Cal., 419; Dixon v. Field, 10 Ark., 243; People v. De La Guerra, 43 Cal., 223.

WILLIE, CHIEF JUSTICE.

The county judge of Johnson county, appellant in this cause, entered up an order dismissing an appeal taken by Jacob Cohen from a judgment of the mayor's court of the city of Cleburne, imposing a fine upon Cohen for a violation of one of the ordinances of that city. The order was entered in pursuance of a motion made by the county and city attorneys, to dismiss the appeal because of the insufficiency of the appeal bond, and because the appellant, Cohen, had not made a motion for a new trial as required by the revised ordinances of the city of Cleburne. The appellant thereupon commenced a suit in the district court of Johnson county, to compel the county judge by mandamus to reinstate the cause in his court and proceed with it to judgment.

The district judge granted a temporary mandamus, and upon final trial made it peremptory, and from this judgment the present appeal is prosecuted.

We do not propose to discuss all the points raised by the record, and so ably submitted in the briefs of counsel and argued at the bar of this court, but to consider only one question, viz.: Whether or not the action of the county judge dismissing the appeal for want of a proper bond could be controlled by a mandamus?

It is well settled that the writ of mandamus can issue to an inferior court only in cases where the duty it directs it to perform requires no exercise of judicial discretion. High on Ex. Leg. Rem., § 156.

“ Mandamus will not lie to control the exercise of the discretion of inferior courts, and where such courts have acted judicially upon a matter properly presented to them, their decision cannot be altered or controlled by mandamus from a superior tribunal.” High on Ex. Leg. Rem., § 156. This principle is supported by an overwhelming weight of authority both in England and America. See note 1 to above section. If the inferior court refuses to proceed with a cause, the tribunal vested with the power of issuing a mandamus to such court may compel it to action by means of this writ. The superior may set the machinery of the inferior court in motion, but it will not dictate what judgment it shall render, or direct the performance of any judicial act. Id., § 152. The mandate commands the judge to exercise his judicial discretion, but does not direct him how it shall be done. Carpenter v. Commissioners, 21 Pick., 258. The rule applies as well to judgments rendered during the course of the proceedings as to the final determination of the cause.

These principles are established by an overwhelming weight of authority and are entirely beyond all question. See the numerous authorities in the notes to above cited sections of High on Ex. Leg. Rem.

The object of the present suit was not to compel the county court to act when it had refused to do so, but to compel it to reverse an action it had already performed, and reinstate a cause it had already dismissed. This was, in effect, to revise a ruling made by that court, and to substitute the opinion of the district judge for that of the judge having jurisdiction of the appeal from the mayor's court.

The writ of mandamus can perform no such function. It cannot be made a substitute for an appeal or writ of error, and more especially can it not be used by one court to reverse the judgments of another, over which it has no appellate control.

The county court, in this case, had passed upon the sufficiency of the appeal bond made by Cohen. It had taken into consideration the question as to whether or not the bond was made payable to the proper obligee. In order to determine this question according to the appellee's own argument, it was necessary for the judge to ascertain to whom the city ordinances required the instrument to be made payable. Finding that they named the city as the obligee, he had then to examine as to whether, under the constitution and laws of the state, a bond payable to...