
    (49 South. 137.)
    No. 17,568.
    PERKINS v. HIS CREDITORS. In re PERKINS.
    (April 12, 1909.)
    Mandamus (§ 57*) — Appeal Bond — Mandamus to Compel Amendment — Insolvency.
    Where an insolvent applies for a respite, and certain creditors file an opposition, and the court sustains the opposition, and the insolvent appeals from the order, and the judge, while ill and unable to attend properly to his duties, fixed the amount of the appeal bond so as to cover the amount of the debts, instead of merely costs, and the insolvent immediately appeals, although the judge signifies that he would change the bond to the proper amount if the opposition counsel would agree, the insolvent-will not be sent back to the trial court to first exhaust his remedies in such court, where doing so vould cause the appeal to be lost, it further appearing that the insolvent’s counsel probably thought that the judge would reduce the amount only with the consent of opposing counsel; and mandamus to reduce the amount, so as to cover only the costs, will be granted.
    [Ed. Note. — For other cases, see Mandamus, Dec. Dig. § 57.*]
    In the matter of the insolvency of W. L. Perkins. An appeal was taken from an order sustaining opposition to' a respite, and W. L. Perkins applies for certiorari, prohibition, and mandamus to reduce the amount of the bond.
    Writs granted.
    Calvin Evans Hardin, for relator. Respondent judge, pro se.
   PROVOSTY, J.

The relators applied for a respite. The notary commissioned to hold the meeting of creditors reported that a majority in number and amount of the creditors had voted in favor of granting the respite. Certain creditors filed an opposition. The court sustained the opposition. Relator appealed. The court fixed the appeal bond at $4,000; that is to say, to cover the amount of the debts instead of merely in an amount sufficient to cover costs. Hence the present application to this court for writs of certiorari, prohibition, and mandamus.

The judgment was signed on the 19th of March. The application for the appeal was made on the 27th of the same month, which was a Saturday. The judge says that it was presented to him at his home by a young man who was a law student in the office of relator’s counsel; that owing to a sick headache, from which he was suffering at the time, he felt unable to give the matter proper attention, and suggested to the young man that the matter be postponed until the following Monday, the 29th, when he would act upon it; that the young man said that relator’s counsel was afraid the appeal would be lost if not acted on at once, whereupon he (the judge) asked the young man what the appeal was predicated upon, and the young man replied upon the debts shown by the schedule; that thereupon he, the judge, fixed the bond in the amount complained of, informing the young man, at the same time, however, that he would change it later to an amount merely for costs, if the latter, on further consideration, was found to be proper; that on the afternoon of the same Saturday the young man notified him that relator’s counsel was going to file the present application in the Supreme Court; that on the morning of Monday, the 29th, he informed relator’s counsel that he was inclined to think that the bond should be only for costs, and that, if he and opposing counsel would so agree, he would change the amount of the bond, and that relator’s counsel said that it was too late, as the application had already been made to the Supreme Court; that, had an application been made to him to change the amount of the bond into one for costs only, he would have done so, and that he is ready now to do so; that his sole motive for fixing the higher amount was to make sure to conserve the appeal of relator, he (the judge) not being in a condition of mind at the moment, owing to his illness, to give the matter sufficient thought to determine what the amount of the bond should be predicated on.

Upon the foregoing facts, we have hesitated whether we should not hold that the relator should have exhausted his remedies in the lower court by making a personal application to the judge for a reduction of the bond before having recourse to the present application in this court; but, considering that, if we adopted that view, the appeal would be lost, and being satisfied relator’s counsel probably thought that the judge would change the amount only with the consent of opposing counsel, and was actuated solely by the desire to conserve his right of appeal, we have concluded to make the writs peremptory.

It is ordered and adjudged that the writs herein prayed for be made peremptory, and that the Honorable Don B. So Relie, judge of the Twelfth judicial district, be and he is hereby ordered to fix, in an amount as for costs only, the bond for appeal from the judgment rendered by said court on March 19, 1909, in the matter of W. L. Perkins v. His Creditors.  