Aycock v. Williams

18 Tex. 392 | Tex. | 1857

Wheeler, J.

The petition was filed by the defendant in a judgment rendered by a Justice of the Peace. The petition alleges that upon a trial before the Justice, judgment was rendered for the defendant; that, upon application of the plaintiff, the Justice afterwards granted a new trial, and gave judgment against the defendant; and that the defendant had no legal notice of the granting of the new trial, and consequently did not attend the last trial. It appears by the return to the certiorari, that the first trial was had before the Justice on the 3d of May ; and the new trial was granted on the ninth. It does not appear that the defendant had notice of the application. There is, in the record, an affidavit of the Justice, in which he states that he gave the defendant a verbal notice on or about the'19th of May. The plaintiff below (defendant in the certiorari) moved to dismiss the certiorari, which motion the Court overruled ; and the plaintiff declining to proceed further, the Court gave judgment against him, from which he appealed.

On a motion to dismiss a certiorari, the Court may look to the return. (Kirk v. Graham, 14 Tex. R. 316, and see cases not yet reported.) Looking to the petition and return to the certiorari, and the affidavit of the Justice, which were before the Court when the motion to dismiss was considered, it clearly appears that the new trial was applied for and granted several days after the day on which the judgment was rendered, and without notice to the defendant. The Statute provides that the Justice may grant a new trial for good cause shown, supported by affidavit, at any time within ten days after the rendition of judgment; and that “ one day’s notice of the application shall be given to the opposite party, his agent or attorney.” (Hart. Dig. Art. 1734.) After the rendition of final judgment by the Justice, his power and jurisdiction over the cause and the parties ceased. He could only re-acquire jurisdiction to re-examine the case upon application for a new trial; and upon this application notice to the adverse party was necessary to give jurisdiction of his person. The notice was not given, and the Court consequently had not jurisdiction to grant the new trial, or take further action in the case. The only notice which was given was after the new trial had been granted. But the Statute requires notice to be given of the application. The judgment, having been rendered when the Justice had not jurisdiction, was void. The only question, therefore, is whether the defendant should have proceeded by injunction, on account of the nullity of the judgment, to enjoin its collection ; or may have a certiorari to bring the case into the District Court to have the judgment set aside and the cause tried anew. That he might have pursued the former remedy is clear. But if he sees proper to adopt the latter, it is not perceived that there can be any solid objection to it. It is a more convenient remedy, as being, in general, more to the advantage of the adverse party : who will then have an opportunity of obtaining a valid judgment, if he have a meritorious ease.

Ordinarily, it is true, a petition for certiorari must show merits. It should always do so, where the Justice had jurisdiction to render the judgment which he has rendered, and has only committed errors and irregularities in his proceedings, not affecting the merits and justice of the case. But a party is not obliged to show merits in order to be relieved against a void judgment- We are of opinion, therefore, that the Court did not err in refusing to dismiss the certiorari, and that the judgment be affirmed.

Judgment affirmed.