State ex rel. Cass v. Clark

The opinion of the Court was delivered by Bermudez, C. J. This is an original application for a mandamus to 'compel the defendant to prepare and deliver, without costs, to the relator, the transcript of appeal in the case of Marie Louise Cass against him, on which judgment was rendered in favor of plaintiff and against the defendant, both on the merits and on the reconventional demand, granting a separation from bed and board. The relator charges that after the judgment had become final, he applied for and obtained an order of appeal therefrom, returnable to. this Court, on giving a bond, which he furnished, and directing the clerk of the lower court to prepare and deliver to the appellant the transcript of appeal, free from costs, in forma pauperis; that he has called upon the clerk for such transcript, and that said officer refuses to comply with the order of the District Court. He asks this Court to enforce the order of that court. We allowed the relator a rule on that officer to show cause why he should not' comply with the demand made of him. To that rule an elaborate return is made, supported by a similar brief. . We have attentively read the petition of the relator, the printed argument in support of it, and have come to the conclusion that if the relator_have a right to require the preparation and delivery of the transcript of the ease in which he was cast, without subjection to any disbursement, he should address his complaint and prayer for relief not to this, but to the District Court which granted the order, and to which the defendant is amenable as its ministerial officer. Although the jurisdiction of the lower court may have ceased on the case since the order of appeal was granted, and the bond thereunder was furnished, as to the parties to the suit, the power of the court, over its clerk, to compel him to perform as such, in that court, duties which may be found to be imposed upon him by law, has not terminated. Our original jurisdiction in matters of mandamus, does not extend to cases like that now presented. Const. Art 90. The application is", therefore, refused.