Opinion
No. 2672
Opinion Filed April 29, 1913. Rehearing Denied June 10, 1913.
MANDAMUS — Mandamus to Courts. A writ of mandamus was sought to require a justice of the peace to mark a certain bond filed and tranmit to the clerk of the county court a transcript. The bond, as well as the papers in the case, including the docket and record, had been destroyed in a conflagration. The relator had not made any effort to have the lost or destroyed papers substituted. Held, not error to deny the writ.
(Syllabus by the Court.)
Error from District Court, Wagoner County; J. H. King, Judge.
Action by the Midland Valley Railroad Company for writ of mandamus against W. L. Gilcrease, Justice of the Peace. Judgment for defendant, and plaintiff brings error. Affirmed.
Edgar A. de Meules, for plaintiff in error.
This proceeding in error is to review the judgment of the trial court in refusing the plaintiff in error a writ of mandamus commanding the defendant in error, a justice of the peace, to mark a certain bond filed and deliver and transmit to the clerk of the county court of Wagoner county a transcript in a certain cause. It appears that in due time the bond or undertaking was executed and presented to and left with the justice of the peace, but that he failed to mark it filed. The bond, as well as the papers in the case, including the dockets, record, and papers, were destroyed in a conflagration, and for that reason the bond was neither filed nor a transcript transmitted to the county court.
The plaintiff in error seems not to have made any effort to have the lost or destroyed papers and records substituted. It appears that it was not within the power of the justice of the peace to comply with the terms of the writ sought, and the trial court did not abuse its discretion in refusing same.
The judgment of the lower court is affirmed.
All the Justices concur.