Moore v. Muse, 47 Tex. 210

Moore v. Muse

47 Tex. 210 | Tex. | 1877

Moore, Associate Justice.

The clerk is an officer of the court, and in the discharge of his mere ministerial duties in issuing mesne or final process, is subject to its direction and control. And if, in any case, through a mistaken conception of his duty, or willful disregard of the rights of a party to an action, he refuses to issue any writ or process to which such party is justly entitled, he may no doubt be compelled to do so by the court, by a motion in the case to which such writ or process properly belongs. And, if the judgment or order of the court on such motion can be brought to this court for review, either by appeal or.writ of error, it can only be done by a party or privy to the suit to which such writ pertains, and whose interest is in some way affected by it, and not by the clerk who is ordered by the court to issue such writ.

And where the clerk neglects or refuses to discharge any of his official duties to the injury of either party to the suit, or obstructs and delays the due course of proceeding in a case, this seems to be the most economical andcprompt means of redress to which the party injured can in general have recourse, as well as the most efficacious means of invoking the punitory power of the court over its derelict or recusant officer.

Ho doubt the party interested in the due performance of such official duty, if he has sustained an injury by such neglect or refusal of the clerk to perform his plainly required ministerial duty, may maintain an action for the damage thus sustained. Or he may, by á suit in the nature of man-*216damns, compel the officer to discharge his duty, and issue the ■requisite process to which he is entitled. But where this course is resorted to, the clerk is, of course, a necessary party to the action, if, indeed, he is not often the only absolutely essential party agaiust whom it should be brought. And, although he may not be interested in the subject-matter to be affected by the writ or process which he is commanded to issue, it cannot be denied that he is bound by, and hence has an interest in the judgment. And, if a proceeding of this kind is to be regarded as a suit, (Marbury v. Madison, 1 Cranch, 137,) the right of appeal cannot be denied him. Appellant has equally as great an interest in this judgment as has any other officer who is required by a peremptory mandamus to perform a ministerial act, which is plainly required of him in the proper discharge .of his official duties. The right of appeal in such suits by the officers against whom they are prosecuted, although they are in no way interested in tire matter or thing which they are commanded to do, has been too often recognized and sanctioned by the action of this court to be now regarded as an open question. We see no reason why a clerk, when made a defendant in a like action, shall be regarded as an exception from the general rule, and he has not been heretofore so treated. (See Ridley v. Henderson, 43 Tex., 135.)

There can be no pretense that the writ of error bond upon which the judgment recovered by Muse and others-against Burk and wife jras brought to this court, is such as is required by the statute, if the writ of error is intended to operate'as a supersedeas. (Paschal’s Dig., art. 1495.) It is true, if the case had been taken up by appeal, and a bond in like amount and penalty had been given, although it would not, accurately speaking, operate as a supersedeas, (Paschal’s Dig., art. 1491,) yet it would have suspended the enforcement of the judgment, pending the appeal. (Paschal’s Dig., art. 1493; Ledbetter v. Burns, 42 Tex., 508.) But though we see no good reason why the rule should not be the same, whether the *217judgment is brought to this court for review by writ of error or appeal, yet, evidently, no like provision has been made by the Legislature in respect to writs of error, and it is not within our province to do so. The statute says, in plain and positive language: “bio such writ of error shall operate as a supersedeas, nor shall a supersedeas issue with any such writ until the party obtaining the same shall file with the clerk issuing such writ of error, his obligation, with good and sufficient security, to be approved by the clerk, payable to the adverse party, in a sum equal to double the value or amount of the judgment, order, or decree upon which the writ of error is obtained.” Unquestionably, therefore, the clerk who took this bond had no authority to issue the writ of supersedeas; and it cannot be denied that he did so in plain violation of a plain and positive command laid upon him in the statute. It was also manifest to appellant, from records of his office, that the judgment had not been superseded; and as it had not, it was clearly his duty, when called upon by the plaintiff, to have issued the proper process to carry it into execution.

It follows, that the judgment of the court commanding and requiring appellant to perform this duty, and issue the proper process for the enforcement of its judgment, is correct, and it is therefore affirmed.

Aeeirmed.