Opinion
June 5, 1912.
Appeal from Bell County Court.
Action between A. O. Martin and V. Irvin. From the judgment, Martin appeals. On motion by Martin for certiorari against the county clerk of Bell county. Motion overruled.
Sam D. Ware, of Belton, for the motion.
This is a motion asking this court to isssue a writ of certiorari to compel the county clerk of Bell county to prepare and deliver to appellant or his attorney a transcript, in order that an appeal may be properly prosecuted. The motion or application does not ask that the clerk be cited and given a hearing, and asks for no other relief than a writ of certiorari.
Appellant attempts to show that he perfected his appeal by filing a pauper's oath in lieu of an appeal bond, and that the clerk has refused to prepare the transcript, after being requested so to do. As a general rule, when an officer refuses to perform a ministerial duty, the remedy to compel performance of such duty is a mandamus proceeding directly against such officer; and we hold that appellant has mistaken his remedy, and that he should have pursued that course in this case. Newton v. Leal, 56 S.W. 209; In re Lawrence Estate, 146 S.W. 701.
Motion overruled.