Bean v. Polk

226 S.W. 1106 | Tex. App. | 1921

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.

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 have been approved by the clerk if the sureties were sufficient. The clerk has nothing to say about the form or substance of the bond.

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.