Griffin v. Wakelee
| Decision Date | 01 January 1874 |
| Citation | 42 Tex. 513 |
| Parties | WILLIAM H. GRIFFIN v. DAVID WAKELEE. |
| Court | Texas Supreme Court |
APPEAL from Galveston. Tried below before the Hon. A. P. McCormick.
Wm. H. Griffin filed his petition in the District Court of Galveston county, against David Wakelee, alleging that Wakelee is the clerk of the said District Court; that on December 10, 1874, plaintiff had obtained judgment in said court against Martin H. Royston, adjudging the said Griffin to be the clerk of the Criminal District Court for Galveston county, and entitled to the custody of the records of said Criminal District Court, and ordering that a writ of mandamus issue to Royston requiring him to deliver over to Griffin said office, together with all the records of said Criminal District Court; that upon the rendition of said judgment, Royston gave notice of appeal, and subsequently had filed his appeal bond, which appeal bond had been, December 15, 1874, approved by said Wakelee as clerk; that on December 21, 1874, plaintiff applied to Wakelee for the issuance of the writ of mandamus as required by said order, and that Wakelee refused to issue the writ; that pending the appeal plaintiff was entitled to the possession of the records of the said Criminal District Court and to exercise the duties and have the privileges of said office; that plaintiff cannot obtain possession of the franchises of said office and records during appeal, except by the process of this court, requiring its clerk to issue the writ of mandamus according to the said order and judgment of the court. Prayer for citation to Wakelee and that he be required to issue the writ of mandamus, or show cause why a peremptory mandamus should not issue to him requiring him to issue such writ.
Wakelee answered that Royston had perfected his appeal by giving appeal bond.
The allegations of fact in both petition and answer were admitted, and the case being submitted to the judge a judgment was rendered for defendant, from which Griffin prosecuted his appeal.
The errors assigned are:
1. The judgment of the court is against the law and the evidence.
2. The judgment should have been for plaintiff.
Wm. H. Stewart, for appellant, cited Griffin v. Steele, 1 Edmond's Select Cases, N. Y. 505; Pinckney v. Hanegan, 2 Strobhort (S. C. R.), 250.
F. Charles Hume cited United States v. Columbian Ins. Co., 7 Wheat., 534; 2 Cranch, C. C. R., 266; Crawford v. Addison, 22 Howard, 174; 6 Wallace, 294; (Article IV., Section 3); Paschal's Digest, 1491, 1495.
The only question in this case is, whether a judgment of the District Court awarding a peremptory mandamus for the restoration of the plaintiff to an office, can be superseded or suspended by an appeal to this court. This question, we are clearly of opinion, must be answered in the affirmative. Such, we believe, has been the uniform usage and practice in mandamus cases ever since such proceedings as this have been authorized in the District Court.
It is unquestionably true, that at common law, a writ of mandamus could not be stayed or suspended by a writ of error or appeal, for indeed no writ of error or appeal could under it be prosecuted from the order of the court awarding the writ. But it is quite evident that the common-law proceeding, whereby relief was had by aid of the great original, or prerogative, writ of mandamus, was...
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