Thoms v. Eskew

McCLENDON, Chief Justice. This is an appeal from an order of the trial judge sustaining a contest by the clerk of a pauper’s oath on appeal by writ of error filed by appellants under R. S., art 2266, as amended by chapter 134, § 1, p. 226, Acts 42d Leg. 1931 (Vernon’s Ann. Civ. St. art. 2266). Appeal will not lie from such order. Melancon v. First Nat. Bank (Tex. Civ. App.) 68 S.W.(2d) 538. Mandamus is the proper procedural remedy. Boone v. McBee (Tex. Civ. App.) 280 S. W. 295, and cases there cited. If appellants desire to apply for mandamus, they may withdraw the record and statement of facts for use therein. Since, however, they have filed a $200 appeal bond in this proceeding, they must pay the costs in accordance with the obligation of said bond, as a condition precedent to- such withdrawal. The appeal is dismissed.