Bean v. Polk

Court of Appeals of Texas

Bean v. Polk

226 S.W. 1106, 1921 Tex. App. LEXIS 550

CourtCourt of Appeals of Texas

DecidedJanuary 13, 1921

DocketNo. 1161.

StatusPublished

Cited by3 cases

This text of 226 S.W. 1106 (Bean v. Polk) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bean v. Polk, 226 S.W. 1106, 1921 Tex. App. LEXIS 550 (Tex. Ct. App. 1921).

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Opinion

*1107 HARPER, C. J.

This is an original application for writ of mandamus to require the clerk of the district court of Hudspeth county to approve and file a supersedeas bond tendered by relator in cause No. 110, which he seeks to bring to this court upon appeal.

[1] The bond is sufficient in form and substance to comply with the provisions of the statute (article 2101, V. S.), and therefore in these respects sufficient to give this court jurisdiction, and it should haye been approved by the clerk if the sureties were sufficient. The clerk has nothing to say about the form or substance of the bond.

[2, 3] The burden is upon relator to show that the sureties are sufficient. Kruegel v. Murphy & Bolanz, 59 Tex. Civ. App. 482, 126 S. W. 680. He charges under oath that the clerk had stated that the sureties were good for the amount for which the bond had been drawn, also alleges that they were in fact worth many times the amount, but in a reply, under oath, these allegations are denied, so the burden has not been met in this respect. The clerk being clothed with discretion in passing upon the financial worth of sureties upon such bond and entering his approval thereon, he will not be required by writ of mandamus to approve unless the relator shows that he has arbitrarily and without exercising discretion refused (to approve the bond (Gouhenour v. Anderson, 35 Tex. Civ. App. 569, 81 S. W. 104), and relator has not met the burden of proof in this respect.

Refused.

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*1107 HARPER, C. J.

This is an original application for writ of mandamus to require the clerk of the district court of Hudspeth county to approve and file a supersedeas bond tendered by relator in cause No. 110, which he seeks to bring to this court upon appeal.

[1] The bond is sufficient in form and substance to comply with the provisions of the statute (article 2101, V. S.), and therefore in these respects sufficient to give this court jurisdiction, and it should haye been approved by the clerk if the sureties were sufficient. The clerk has nothing to say about the form or substance of the bond.

[2, 3] The burden is upon relator to show that the sureties are sufficient. Kruegel v. Murphy & Bolanz, 59 Tex. Civ. App. 482, 126 S. W. 680. He charges under oath that the clerk had stated that the sureties were good for the amount for which the bond had been drawn, also alleges that they were in fact worth many times the amount, but in a reply, under oath, these allegations are denied, so the burden has not been met in this respect. The clerk being clothed with discretion in passing upon the financial worth of sureties upon such bond and entering his approval thereon, he will not be required by writ of mandamus to approve unless the relator shows that he has arbitrarily and without exercising discretion refused (to approve the bond (Gouhenour v. Anderson, 35 Tex. Civ. App. 569, 81 S. W. 104), and relator has not met the burden of proof in this respect.

Refused.

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226 S.W. 1106, 1921 Tex. App. LEXIS 550, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bean-v-polk-texapp-1921.

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