Opinion
No. 12917.
July 22. 1939.
Original application by Viola L. Wimberly and others, relators, for writ of mandamus to compel Pearl Smith, Clerk of the District Courts of Dallas County and her Chief Deputy, D.C. Whitely, to approve and file a supersedeas writ of error bond in a cause between Viola L. Wimberly and others, and the Homeland Realty Company and others.
Application denied.
G. Q. Youngblood, of Dallas, for relators.
Geo. T. Burgess, of Dallas, for respondents.
Relator has made no application to the Judge or the court that tried the cause, to allow or fix the amount of supersedeas bond. From other than money judgments, it is the prerogative of the trial court to allow or fix the bond in appeal; it is not a proper function of an appellate court. A mandamus does not lie to compel an official, whose duty it is to approve such bonds, when no such bond has been allowed or fixed by the court. This is not an appeal from a money judgment, thus the amount of the bond must be fixed by the trial court. Under the authority of Ferguson v. Ferguson, Tex. Civ. App. 69 S.W.2d 592; Weatherford v. National Life Ins. Co., Tex. Civ. App. 78 S.W.2d 992; Yturria Town Imp. Co. v. Hidalgo Co., Tex. Civ. App. 114 S.W.2d 917, and authorities cited, the application for writ of mandamus is denied.