
    COLLINS v. STATE.
    (No. 6318.)
    (Court of Criminal Appeals of Texas.
    May 19, 1921.)
    1. Mandamus &wkey;>l6(l) — Where .party applied for mandamus to compel court stenographer to file statement of facts in another casé, which was soon filed, compliance will b'e presumed, making mandamus unnecessary.
    Upon appeal from an order refusing mandamus to compel a court stenographer to prepare a statement of facts in an appeal in a habeas corpus ease, where, on the same day that this proceeding was filed, the record on appeal in habeas corpus was filed, as was the statement of facts a few days later, it may be inferred that the stenographer complied with appellant’s request, and that, even if entitled to mandamus, it would not be necessary.
    2. Appeal and error <&wkey;6!2(l), 641 — Appeal dismissed where transcript is not under sea! and certificate of clerk as required by statute.
    Rev. St. art. 2114, requires the binding of the transcript under the seal and certificate of the clerk, and, where such statute is not complied with, the transcript is incomplete, and appeal must be dismissed on motion.
    Appeal from District Court, Polk County; J. L. Manry, Judge.
    Application by Sim Collins against the court stenographer, to require him to prepare a statement of facts in an appeal from a habeas corpus case, was denied by a court order, from which the applicant appeals.
    Motion of the Assistant Attorney General to dismiss appeal granted.
    R. H. Hamilton, Asst. Atty. Gen., for the State.
   MORROW, P. J.

This is an appeal from an order refusing to issue a mandamus against the court stenographer requiring him to prepare a statement of facts in an appeal from a habeas corpus case.

The record on the appeal in that case (No. 6332, 230 S. W. 1004) was filed in this court on the same day that this proceeding was filed. A few days later there was filed in that case a statement of facts. Prom this we infer that the court stenographer complied with the request of appellant for the preparation of the statement of facts, and that, even if he was entitled to a mandamus, it would not be unnecessary.

This proceeding is not in a condition authorizing its consideration. The Assistant Attorney General has filed a motion to dismiss the appeal, for the reason that the transcript is incomplete. The law requires the binding of the transcript under the seal and certificate of the clerk. Revised Statutes, art. 2114; Paris & G. N. R. Co. v. Armstrong & Brown (Tex. Civ. App.) 83 S. W. 28; Code of Crim. Procedure, art. 929; Vernon's Tex. Crim. Statutes, vol. 2, p. 891, note 11.

The motion to dismiss is granted.  