
    McDOWELL, District Judge, v. HIGHTOWER, Chief Justice, et al.
    (No. 5558.)
    (Supreme Court of Texas.
    June 21, 1922.)
    1. Appeal and error <©=3492 — Appellate court has jurisdiction to treat violation of super-sedeas as contempt.
    The effect of an appeal in a suit to remove an officer, as in any other civil case, is to confer jurisdiction on the appellate court over the parties and subject-matter, ■which is ample to protect and enforce every right accruing to appellant by reason of his perfecting an appeal under supersedeas bond, and any action in disregard of the supersedeas is contempt of the jurisdiction of the appellate court.
    2. Appeal and error <©=3456 — Appellate court can determine right of sheriff to continue in office pending appeal from judgment of removal.
    The Court of Civil Appeals, to which an appeal has been taken by a sheriff from a judgment removing him from office, has authority to consider and determine the right of the sheriff to continue in office during the pendency of the appeal, under. Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1592, empowering the Courts of Civil Appeals to issue all writs necessary to enforce their jurisdiction, and, having jurisdiction to hear and determine an application for the enforcement of an asserted right in and to the subject-matter of the suit, pending the appeal, the action of the appellate court in granting an injunction to prevent interference with the exercise of the right was not void, even though its construction of article 6049 was erroneous.
    3. Mandamus <©=328 — Does not issue to control discretion of appellate court.
    The original jurisdiction of the Supreme Court to issue writs of mandamus in accordance with the principles of law regulating such writ does not authorize it to issue such writ to control the official discretion of a Court of Civil Appeals or to correct mere errors in the exercise of judicial powers.
    4. Mandamus <©=>178 — Refusal of mandamus does not prejudice subsequent review on writ of error.
    The refusal by the Supreme Court of a writ of mandamus to compel a Court of Civil Appeals to vacate an order does- not prejudice the review of such order on writ of error, if the Supreme Court’s appellate jurisdiction is invoked in the manner prescribed by law.
    Motion by ®. A. McDowell, as District Judge, for leave to file a petition for mandamus directed against L. B. Hightower, as Chief Justice, and the other Justices of the Court of Civil Appeals of the Ninth Supreme Judicial District.
    Motion denied.
    W. D. Gordon, of Beaumont, for applicant.
   GREENWOOD, J.

In a suit in the district court of the Sixtieth judicial district of Texas, at Beaumont, a judgment was entered removing T. H. Garner from the office of sheriff of Jefferson county and suspending him from office pending appeal. From this judgment, T. H. Garner perfected an appeal to the Court of Civil Appeals of -the Ninth Supreme Judicial District of Texas, by giving notice of appeal and by filing a super-sedeas bond, which was approved by the district clerk. The Court of Civil Appeals thereafter, on petition of T. H. Garner, granted and issued an injunction, restraining relator as judge of the district court of the Sixtieth judicial district from interfering, pending the appeal, with Garner’s discharge of the duties of sheriff of Jefferson county.

Relator presents a motion for leave to file a petition for a peremptory mandamus, requiring the respondents, the justices of the Court of Civil Appeals, to vacate and annul the injunction, which, it is claimed, unlawfully prevents relator from performing his duty, under article 6049 of Vernon’s Sayles’ Texas Civil Statutes, to suspend the officer until the appeal may be determined.

The statutes provide that all proceedings in a suit for the removal of a sheriff be conducted as in an ordinary civil case, as far as possible, and that either party may appeal from the final judgment as in other civil cases. The effect of an appeal in a removal suit, as in any civil case, is to confer jurisdiction on the court to which the appeal is returnable over the parties and subject-matter. Such jurisdiction is ample to protect and enforce every right accruing to a party by reason of his perfecting an appeal under supersedeas bond.

As said by Chief Justice Pleasants in his opinion in the ease of H. B. & T. Ry. Co. v. Hornberger (Tex. Civ. App.) 141 S. W. 313, which was expressly commended and approved by this court in 106 Tex. 74, 157 S. W. 745:

“If appellate courts could not enforce their jurisdiction in this way, the right given a litigant to suspend a judgment of a trial court by appeal and the filing of a supersedeas bond would have no protection, and the final decision of the appellate court would often be merely the decision of an abstract question, the subject-matter or substance of the appeal having been practically destroyed by the execution of the judgment of the lower court pending the appeal. No construction of the statute conferring power upon appellate courts to issue writs of injunction when necessary to enforce their jurisdiction which would produce such results can be sound.”

Any action in disregard of a supersedeas is contempt of the jurisdiction of the court in which an appeal, with supersedeas, is pending. 3 C. J. 1327. It is doing no more than protecting its own jurisdiction for the court to inquire into and prevent such acts as would be in defiance of the effect of the supersedeas.

It cannot, therefore, be doubted that the Beaumont Court of Civil Appeals was authorized to consider and determine the right of Garner to continue in office during the pendency of his appeal, and to protect and enforce that right, if affirmed, in the exercise of the court’s power, under article 1592 of Vernon’s Sayles’ Texas Civil Statutes, to issue all writs necessary to enforce its jurisdiction. Having jurisdiction to hear and determine the application of Garner for the enforcement of his asserted right, in and to the subject-matter of the removal suit, pending the appeal, the action of the Court ©f Civil Appeals was not void, regardless of the correctness of the court’s construction of the statutes relating to a sheriff’s suspension or removal from office and relating to appeals.

The conclusion that the order of the Court. of Civil Appeals cannot be successfully attached as a nullity precludes ’ the award of any relief to relators in this proceeding. This court is bound by the law as is each and every citizen. The law’s behests must be obeyed, if civilized government is to endure. The court has no original jurisdiction to issue writs of mandamus save such as has been conferred by the Legislature. The Legislature in its grant to the court of original jurisdiction in mandamus cases has expressly provided that in its exercise the writ of mandamus shall issue against any district judge, or Court of Civil Appeals, or judge of a Court of Civil Appeals, or officer of the state government except the Governor, only in accordance with the principles of law regulating such writ. There is no principle of law regulating the issuance of a writ of mandamus longer or better established in this state than that mandamus never lies to control official discretion or to correct mere errors in the exercise of judicial power.

This rule was announced by the court through Mr. Justice Wheeler in Little v. Morris, 10 Tex. 267, and is unequivocally reaffirmed in State v. Morris, 86 Tex. 228, 24 S. W. 893, as in numerous other cases.

It ought not to be necessary to say that no opinion is expressed by this court as to whether the proceedings in the removal case in either the district court or in the Court of Civil Appeals were free from error. It is enough to say that this motion in no wise invokes the appellate jurisdiction of this court, under which alone it is authorized to set aside judgments or orders of lower courts for errors in the exercise of jurisdiction granted by the Constitution and laws of the t state. The refusal of the writ of mandamus will in no wise prejudice the review, on writ of error, of the decisions of the Court of Civil Appeals, should this court’s appellate jurisdiction be invoked in. the mode pre.scribed by law. Ex parte Lipscomb (Tex. Sup.) 239 S. W. 1104. • ■

Because established principles regulating the writ of mandamus forbid its issuance on the averments of relator’s petition, it is ordered that the motion for leave to file the. petition be, and the same is, overruled. 
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