This is a motion for leave to file petition for mandamus filed herein on January 3, 1941, by K. J. Caldwell and wife as relators against the Honorable Ewing Boyd, Judge of the 55th Judicial District Court of Harris County, Texas, as respondent. Relators seek in their petition an order from this Court commanding the said respondent to set aside his order sustaining the contest to their affidavit of inability to pay the costs of appeal or to give security therefor in a cause numbered B-257, 865 and styled Claude Clark v. Pretty Clark et al. on the docket of said District Court in which said cause the trial court rendered judgment against the relators, and from which adverse judgment relators desire to prosecute an appeal to this Court. Relators further request this Court to order the respondent to direct the District Clerk of Harris County to prepare a transcript of all proceedings had in said cause without charge, and to likewise direct the Official Court Reporter for said 55th Judicial District Court to prepare and deliver to relators' attorneys, without charge, a statement of facts in the cause. Neither the District Clerk nor the Official Court Reporter are made parties respondent to the petition for mandamus, nor are the adverse litigants brought before this Court in the petition.
Under this statement, it becomes obvious that the petition for the writ of mandamus is fatally defective for want of necessary parties. It is, therefore, our duty to refuse the motion for leave to file the petition without prejudice to relators' right to make necessary parties and again present their cause in this court. H. M. Cohen Lumber Bldg. Co. v. McCalla, Tex. Civ. App. 142 S.W.2d 685; Kelly v. Lobit, Tex. Civ. App.134 S.W.2d 428; Durden v. Patterson et al., 146 S.W.2d 296, decided by this Court on December 19, 1940, and Williams v. Wray, 123 Tex. 466,72 S.W.2d 577.
Motion for leave to file petition for mandamus refused without prejudice.