47 S.W. 1048 | Tex. App. | 1898
The complainant, Frances W. Cox, a resident of Polk County, was the plaintiff in a suit in the District Court of that county entitled No. 2233, Frances W. Cox v. The Houston East West Texas Railway Company, which on the 8th day of December, 1897, was tried in that court and resulted in a judgment for the defendant. During the next term of the District Court after the one at which the judgment was rendered, the complainant, on June 6, 1898, made an application to the district clerk for a writ of error to bring the judgment of the court in the case of Cox v. Houston East West Texas Railway Company before this court for review. She filed with her application her affidavit of the same date stating her inability to pay the costs, which was in proper form, and asked that in case of contest the issue be tried by the District Court. A contest was filed by the defendant company and the district clerk. When the matter was called for trial the court dismissed the application, because the court was of the opinion that he had no jurisdiction to hear and determine the issue after the term of the court at which the judgment was rendered had elapsed. The statute requires the appellant, or plaintiff in error, to make strict proof of his inability to pay the costs, or any part thereof, such proof to be made before the county judge of the county where such party resides, or before the court trying the case, which shall consist of the affidavit of the party stating his inability to pay the costs, unless contested, and in that event it is "the duty of the court trying the case, if in session, or the county judge of the county in which the suit is pending, to hear evidence and determine the right of the party" to his appeal. Rev. Stats., art. 1401. This statute has received construction in a number of cases, but none of them has determined the question here involved. In Graves v. Horn,
It is said by counsel for the respondent that this court has no power to issue a writ of mandamus to the district judge requiring him to hear and determine the question of the inability of the complainant to pay the costs, because the judge in declining to hear the matter sat as a court and exercised a judicial discretion in determining that he was without jurisdiction to do so.
A judge may be directed by mandamus to proceed to the trial of a case, but his judgment can not be controlled. In the case of Ewing v. Cohen,
It is the opinion of the court that it was the duty of Judge Hightower to hear and determine the proof upon the application of the complainant and the contest thereof, and the writ of mandamus will issue as prayed for.
Writ of mandamus granted. *539