Wimberly v. Homeland Realty Co.

131 S.W.2d 423, 1939 Tex. App. LEXIS 771

Opinion

PER CURIAM.

Relator has made no application to the Judge or the court' that tried the cause, to allow or fix the amount of super-sedeas bond. From other than money judgments, it is the prerogative of the trial court to allow or fix the bond in appeal; .it is not a proper function of an appellate court. A mandamus does not lie to compel an official, whose duty it is to approve such bonds, when no such bond has been allowed or fixed by the court. This is not an appeal from a money judgment, thus the amount of the bond must be fixed by the trial court. Under the authority of Ferguson v. Ferguson, Tex.Civ.App., 69 S.W.2d 592; Weatherford v. National Life Ins. Co., Tex.Civ.App., 78 S.W.2d 992; Yturria Town & Imp. Co. v. Hidalgo Co., Tex.Civ.App., 114 S.W.2d 917, and authorities cited, the application for writ of mandamus is denied.