Anderson v. Cunningham

88 S.W.2d 622

• Court: Court of Appeals of Texas
• Decided: November 29, 1935
• Docket: No. 13404.
• Status: Published

Opinion

MARTIN, Justice.

In this case the relator, Mrs. Lula Anderson, having suffered a judgment against her in the county court of Wise county, undertook to bring the case to this court for review by writ of error. She alleged that the respondent, W. V. Cunningham, clerk of the court, arbitrarily refused to approve and file a supersedeas bond which was presented to him by A. B. Cates, her attorney. Pier request to file a petition here for mandamus to require said clerk to approve said bond was granted by this court on November 12, Í935, and respondent was duly cited to appear and show cause on November 22, 1935, why said writ of mandamus should not issue. The parties appeared before this court on Friday, November 22, 1935, and said cause was duly submitted. Respondent, answering, disclaims and denies that he acted arbitrarily, but only delayed the approval and filing of the bond until he had time to ascertain the solvency of the sureties. In the concluding paragraph of his answer, he offers to approve and file said bond if the attorney for relator will present it again. Affidavits accompanying the pleadings seem to evidence the solvency of the sureties. The clerk, having offered in this court to approve and file the bond upon presentation to him, there is no necessity for a writ of mandamus and the same is refused.

It not being made to appear that such offer was made to the relator’s attorney, after the clerk had satisfied himself as to the sureties, we feel that the costs of this proceeding should be equally divided between the parties. The writ of mandamus is therefore refused, and the costs will be taxed against the parties equally.