Moore v. Muse

Citations

• 47 Tex. 210

Syllabus

<p>1. If the clerk of a court, whether through a mistaken conception of his duty, or the willful disregard of the rights of a party to a suit, refuses to issue any writ or process to which such party is entitled, he may be compelled to do so by motion in -the case in which such. writ or process should have been issued.</p> <p>2. Tlie same remedy exists to compel the discharge of any official duty' which the clerk may neglect or refuse to discharge, to the injury of a party litigant. A proceeding by motion is the most economical and prompt means of redress to which the injured party can have recourse, and is the most effective means of invoking the punitory power of the court over its derelict and recusant officers.</p> <p>3. The party injured by a neglect of ministerial duty by the clerk, may also maintain an action for damages thereby sustained; or, he may, by a suit in the nature of a mandamus, compel the officer to perform the neglected duty. If the latter remedy be resorted to, the clerk is a necessary party, and often the only proper party, against whom it should be invoked, and though he may have no personal interest in the performance of the act sought to be enforced by mandamus, his right of appeal from the judgment rendered against him exists.</p> <p>4. A clerk who issues a writ of supersedeas in a cause pending in error in the Supreme Court, in which the writ of error bond was executed for a sum which was not equal to double the value or amount of the judgment order or decree upon which the writ of error was obtained, acts in plain violation of a positive command laid upon him by the statute, and may be compelled, by mandamus, to issue the proper process to enforce the judgment from which the writ of error was prosecuted.</p>