Moore v. Muse

• Decision Date: 01 January 1877
• Citation: 47 Tex. 210
• Parties: L. MOORE ET AL v. WM. MUSE ET AL.
• Court: Texas Supreme Court

47 Tex. 210

L. MOORE ET AL

v.WM. MUSE ET AL.

Supreme Court of Texas.

1877.

1. If the clerk of a court, whether through a mistaken conception of his duty, or the willful disregard of the rights of a party to a suit, refuses to issue any writ or process to which such party is entitled, he may be compelled to do so by motion in the case in which such writ or process should have been issued.

2. The same remedy exists to compel the discharge of any official duty which the clerk may neglect or refuse to discharge, to the injury of a party litigant. A proceeding by motion is the most economical and prompt means of redress to which the injured party can have recourse, and is the most effective means of invoking the punitory power of the court over its derelict and recusant officers.

3. The party injured by a neglect of ministerial duty by the clerk, may also maintain an action for damages thereby sustained; or, he may, by a suit in the nature of a mandamus, compel the officer to perform the neglected duty. If the latter remedy be resorted to, the clerk is a necessary party, and often the only proper party, against whom it should be invoked, and though he may have no personal interest in the performance of the act sought to be enforced by mandamus, his right of appeal from the judgment rendered against him exists.

4. A clerk who issues a writ of supersedeas in a cause pending in error in the Supreme Court, in which the writ of error bond was executed for a sum which was not equal to double the value or amount of the judgment order or decree upon which the writ of error was obtained, acts in plain violation of a positive command laid upon him by the statute, and may be compelled, by mandamus, to issue the proper process to enforce the judgment from which the writ of error was prosecuted.

APPEAL from Washington. Tried below before the Hon. E. B. Turner.

This was a suit to compel, by mandamus, the defendant J. L. Moore, district clerk, to issue an order of sale upon a judgment rendered in the District Court of Washington county, February 5, A. D. 1875, in favor of one Muse et al. v. Burke, for $1,811.90, gold, with foreclosure of vendors' lien upon two hundred and eighty-nine and two tenths acres of land.

Upon said judgment, an order of sale was issued November 6, 1875. On the 4th of December, 1875, Burke and wife filed their petition for writ of error, to remove the cause to the Supreme Court for revision and correction of errors in said judgment, and filed at the same time an error bond, payable to Muse et al., in the sum of $100 only. Previous to the filing of the petition for writ of error and error bond, on the 5th day of November, A. D. 1875, an order of sale had been issued to the sheriff of Washington county, under said judgment. Upon filing the petition for writ of error and error bond, R. A. Harvin, then clerk of the District Court, issued a supersedeas, restraining the sheriff from executing said order of sale, whereupon the sheriff desisted, and returned the order of sale, stating his action, December 6, 1875. On the 23d of May, A. D. 1876, the appellees filed their application for mandamus, to compel J. L. Moore, successor of R. A. Harvin, clerk of District Court, to issue execution, under and by virtue of the judgment and foreclosure against Burke and wife.

Moore answered, that he was informed and believed the bond filed was sufficient to perfect the appeal; that the same had been approved by his predecessor, Harvin, upon the approval of which the jurisdiction of the Supreme Court attached; and asked that he might be protected, in any order made therein, from future liability.

Burke and wife demurred generally and specially to plaintiffs' petition for mandamus, and answered, alleging that the judgment sought to be enforced was secured by foreclosure on land worth $4,335; that the validity of the lien was not controverted, nor the amount of the judgment, but that the judgment was erroneously rendered, as against the wife, J. L. Burke; that a sale of the said land, pending the appeal, would work great and irreparable loss; and if the said bond was “informal or insufficient,” that they be permitted to correct the same, so far as might be necessary.

To these answers, plaintiffs demurred, in the form of a “motion to strike out,” and judgment was rendered upon this motion, and at the same time a peremptory mandamus was granted. To this all the defendants excepted, and gave notice of appeal--Moore being the only one who perfected the appeal by giving bond.

The character of the errors assigned is indicated by the opinion.

P. H. and J. T. Swearingen, for appellant.--If the error bond be insufficient, had the district judge jurisdiction, in a proceeding for mandamus, to adjudicate its sufficiency or insufficiency?

First, the bond had been approved by defendant Moore's predecessor, December 4, 1875, in the exercise of his official discretion. It differed from the statutory cost bond required in Paschal's Dig., art. 1493, although it does not contain an express recital that the obligors are unable to give bond in double the amount of the money judgment against them. This omission, in the language of Chief Justice Roberts, “is an irregularity that does not render the bond a nullity.” (Ridley v. Henderson, 43 Tex., 137.) In this case (Ridley v. Henderson) there was a judgment foreclosing attachment lien; the cost bond by which the appeal was perfected, was not given by the party against whom the money judgment was rendered; and so far as the facts are shown in the opinion, the bond was in all essentials like the bond in the case at bar. Mandamus was granted, requiring the clerk, Ridley, to issue execution and order of sale. The clerk appealed. Chief Justice Roberts, delivering the opinion of the court, says: “The clerk acted correctly in refusing to issue the order for the sale of the said land, and the District Court erred in requiring him to do it in this mandamus proceeding. The clerk had a right to appeal from the judgment rendered against him, as was held by this court, in the case of Royston v. Griffin, 42 Tex., 566.” (Ridley v. Henderson, 43 Tex., 137.) Upon the authority of this case, the defendant Moore acted and appealed, and, we submit, ought to be sustained.

Appellee's counsel seem to attach some importance to the use of the term “ supersedeas,” as it appears in the preamble to the bond. If the bond is a substantial compliance with article 1493, Paschal's Dig., although it “does not operate as a supersedeas--for the party is still entitled to such process as will authorize the sheriff to take possession of the property designated by the statute,--it does suspend the power to sell.” “The order of sale would confer no authority to sell if the bond given was such as the statute prescribed.” (See opinion by Judge Gould, Ledbetter v. Burns, 42 Tex., 511.)

We submit that, “appeal perfected,” “writ of error perfected,” in any of the modes pointed out by statute, are, for all practicable purposes, each being in the fact, a supersedeas, in so far as either most assuredly suspends a sale. (Ledbetter v. Burns, 42 Tex., 511; Ridley v. Henderson, supra.)

Walton, Green & Hill, for appellees.--The cases cited by appellant's counsel are not at all applicable, either as authority or in principle.

Ridley v. Henderson, 43 Tex., upon which the whole fabric of the appellant's brief turns, was--

(1) An appeal case. This is a case brought here by writ of error, and a bond executed under one law cannot be made to apply to another. (Janes v. Langham, 29 Tex., 416, 417.)

(2) The bond in that case was sufficient as a cost bond, under Paschal's Dig., art. 1492, and the suit there was for the recovery of title to land; and the Supreme Court had acquired proper jurisdiction, and supersedeas was given by force of the law itself. In this case, not only was the bond insufficient, under the section governing writs of error and supersedeas, but the suit was...