Vince v. Dahl

O’QUINN, Justice. On August 24, 1940, there was pending on the docket of the Special Ninth District Court of Montgomery County, Texas, a cause entitled John Vince v. Humble Oil & Refining Company, et al., which included as a defendant the Texas Company, said, cause being numbered No. 18253 — B, and over which said district court the Hon. E. T. Murphy presided as judge. On said date, August 24, 1940, a judgment was duly entered, that plaintiff, John Vince, take nothing by his suit, and that the defendants, naming them, go hence with their costs. The plaintiff, John Vince, duly filed his motion for a new trial, which in due order was heard, and on September 6, 1940, overruled, and notice of appeal was given. On September 21, 1940, appellant, John Vince, executed his affidavit of inability to pay the costs of appeal or any part thereof, and that he was unable to give security therefor, and prayed that he be permitted to appeal his cause on his said affidavit. This pauper’s affidavit was duly contested by Hon. G. L. Dahl, the official stenographer of the court, and Hon. Nan Weems McGuire, the Clerk of the district court in which said cause had been tried and was pending. The Texas Company, and numerous other defendants, joined said stenographer and clerk in their contest fully answering and alleging various grounds why such appeal should not be allowed. After due notice, the contest was heard by the court, Hon. E. T. Murphy, district judge aforesaid, and permission to prosecute the appeal upon the pauper’s affidavit was refused. This proceeding is a request by appellant, John Vince, for permission to file in this court an application for a writ of mandamus to said G. L. Dahl, stenographer of the court, and Nan Weems McGuire, clerk of said district court, aforesaid, to compel them to prepare and deliver to appellant, John Vince, a proper and complete transcript of all of the proceedings had in the district court in the trial of said cause, and for a complete and correct statement of the facts containing all of the evidence adduced by the parties in the trial of same. [242] There is before us a statement of the facts adduced upon the hearing of the motion for permission to appeal the case on the affidavit of appellant’s inability to pay the costs, or to secure the payment of same. After careful consideration of the evidence contained in the statement of facts adduced on the hearing in the contest of said affidavit, we are of the opinion that the court did not abuse the discretion vested in him in refusing the permission .to so appeal. Stark v. Dodd, Tex.Civ.App., 76 S.W.2d 865. The evidence abundantly supports the action of the court in refusing the request. The request for permission to file application for the writ of mandamus is refused.