Opinion
No. 16127.
May 11, 1962.
Fritz Vinson, John R. Bryant, Dallas, for relator.
Henry Wade, Dist. Atty., John J. Orvis, Asst. Dist. Atty., Thompson, Knight, Wright Simmons, Dan Rogers and Jerry L. Buchmeyer, Dallas, for respondents.
Relator Ralph Stephen Florek has filed a petition for a writ of mandamus ordering Respondent Bill Shaw, District Clerk of Dallas County, Texas, to prepare a Transcript for Appeal in Cause No. 65,329, styled Ralph Stephen Florek v. Merchants Retail Credit Association, et al., in the 116th District Court of Dallas County. The petition also asks that this Court direct Hon. F. B. Davenport, Judge of said 116th District Court, to order Respondent Shaw to prepare and furnish the Transcript.
The record discloses that Relator heretofore filed an affidavit of inability to pay costs in Cause No. 65.329, which affidavit was duly contested by the District Clerk. On February 14, 1962 the trial court signed an order sustaining the contest, the said order requiring Relator to give security for costs within twenty days. The order further provides for dismissal of the cause of action as of the twentieth day in the event Relator should fail to give security for costs.
On February 22, 1962, prior to the expiration of the twenty day period, Relator gave notice of appeal as follows: 'Plaintiff, Ralph Stephen Florek, in the above entitled and numbered cause herewith give (sic) notice of appeal to the Court of Civil Appeals, Fifth Supreme Judicial District, from the order of this Court of February 14, 1962, sustaining a contest of Plaintiff's Affidavit of Inability to Pay Costs.' (emphasis ours)
Also on February 22, 1962 Relator filed an affidavit in lieu of cost bond on appeal. This affidavit was not contested. Nevertheless Respondent Bill Shaw declined to prepare and furnish Relator with a Transcript for Appeal, and the District Judge declined to order Respondent Shaw to do so. Thereupon the Relator with our permission filed the petition for a writ of mandamus now under consideration.
We must refuse to grant the writ. It is plain, as shown by the express language of Relator's notice of appeal, that he seeks to appeal from an order sustaining a contest of his affidavit of inability to pay costs. The order is interlocutory in nature, therefore, is not appealable. Burleson v. Rawlins, Tex.Civ.App., 174 S.W.2d 979; Thoms v. Eskew, Tex.Civ.App., 81 S.W.2d 713. Therefore it was proper of for the trial court Therefore it was proper for the trial court prepare a Transcript and the District Clerk was not under duty to prepare and furnish a Transcript.
The application for a writ of mandamus is refused.