61 Ark. 339 | Ark. | 1895
Henry K. Fitzhugh, as administrator of the estate of John Franklin, deceased, brought suit and recovered a judgment in the Crawford circuit court against the defendants, Kansas & Arkansas Valley Railway' and Kittle Rock & Fort Smith Railway, for the sum of three thousand and fifty dollars. On the same day that the judgment was rendered, a motion for a new trial was filed, overruled, exceptions noted, appeal prayed, and sixty days granted defendants to prepare and file their'bill of .exceptions. Fight days afterwards, and before the bill of exceptions was prepared and submitted to the judge who presided at the trial, he died.. Thereupon said defendants filed their petition in this court, asking that the clerk of the Crawford circuit, court be compelled by a writ of mandamus to sign the-name of the presiding judge to said bill of exceptions..
The application for the writ must be denied. It, is not the duty of the clerk of the circuit court, under any circumstances, to sign the name of the-judge thereof to a bill of exceptions, and the writ of mandamus cannot be invoked to compel an officer to do-that which the law does not make it his duty to do. It. lies only to compel the performance of legal duties. Chicot Co. v. Kruse, 47 Ark. 85; Fitch v. McDiarmid, 26 Ark. 482; Brownsville v. Loague, 129 U. S. 493; Merrill on Mandamus, sec. 50.
