Ex parte Ricks

54 Tenn. 364, 7 Heisk. 364, 1872 Tenn. LEXIS 57

Opinion

Nicholson, C. J.,

delivered the opinion of the Court.

This is a petition for a mandamus to require the Clerk of the Circuit Court of Cheatham county to send a certified transcript of the record in the case of Shaw v. Ricks, tried in that Court in 1869. The ground in the application is, that when the cause was tried and determined against petitioner, he prayed an appeal to this Court, and the Circuit Judge gave him time beyond the adjournment of the Court within which to make his appeal bond to the Clerk. This he failed to do, from oversight or forgetfulness, until two days after the expiration of the time. After he did execute the bond the Clerk refused, and still refuses, to send up the transcript.

The writ of mandamus lies to compel an officer to perform an official duty. But the Circuit Judge had no power to authorize the Clerk to take an appeal bond after the adjournment of the Court. The taking of an appeal bond is a judicial act. The usage of authorizing clerks and masters to take such bonds by orders of the chancellors, has been reluctantly acquiesced in by this Court. 4 Cold., 326.

But no such usage has prevailed in the circuit courts. But in this case the bond was not taken until after the time limited by the Circuit Judge. The bond was therefore a nullity. Without an appeal bond the Clerk had no right to send up a transcript. It is therefore not a proper ease for a mandamus. The remedy of the petitioner was by writ of error, after having failed to take his appeal in proper form.

The petition for mandamus is disallowed.