State ex rel. Richard v. Robertson

Howell, J. The relator complains that the defendant refuses to make out and deliver or transmit a transcript of appeal, although he, relator, has furnished an appeal bond with good security, as ordered by the judge of the lower court, and to which no legal objection is made. The clerk, now in office, answers that the relator has refused and still *581 refuses to pay for the cost of making out the transcript, which under act No. 24 of 1872 the clerk is not bound to deliver to the appellant until such cost is paid, and for this reason the respondent refuses to deliver the transcript of appeal. This implies that the transcript is made out and is not delivered to appellant or transmitted by the clerk to this court because its cost is not paid. By the second section of the act cited, the clerk shall not be required to deliver the transcript of the record before his fees for preparing the same have been paid. It is therefore ordered that the application for the mandamus herein be dismissed with costs.