Bodman v. Harris

20 Tex. 31 | Tex. | 1857

Roberts, J.

Bodman instituted a suit before a Justice of the Peace on an open account against Harris, who filed a set-off and recovered a judgment against the plaintiff. Appellant, Bodman, applied for and obtained a' certiorari to remove the cause to the District Court, which, upon exceptions to the petition, was dismissed, and brought to this Court by plaintiff below on appeal. He assigns as error the judgment of the Court in dismissing his petition. There were various exceptions to the petition, covering every ground, the least assailable.

The petition complains that defendant was allowed to establish an “ offset of eighty-three 12 J-100 dollars for a trip to Houston to haul thirty-five hundred (pounds of goods) at dollars, which plaintiff failed to furnish,” because it was an unliquidated demand. This objection was not tenable ; for plaintiff’s account was likewise unliquidated, as the record shows.

The plaintiff states that at the trial before the Justice, he moved the Court for a continuance in order to get testimony to rebut the set-off just presented, and that the Justice would not' grant it unless he would make affidavit that he had used due diligence to procure it. He, however, did not make any affidavit for continuance as required by the statute, as he should have done if he wished a continuance. He should have made and presented it, and if the Justice had disregarded it, then this Court could have considered it in connection with the other facts.

.Again ; he states that he offered to prove that said defendant did other hauling (meaning, it is presumed, on the trip to Houston) “ in abatement” (of the price charged for the trip,) which was ruled out by the Court. This was certainly proper evidence, and should have been admitted. But an error of the Justice cannot avail the appellant, unless he had alleged in his petition, what he could have proven upon the subject, so as to let the Court judge of its materiality.

And lastly, the petition states that he “ does believe that he can prove a conditional contract with regard to said hauling.” This averment, besides being liable to the objection just referred to, relates to some matter not attempted to be set up before the Justice. A petition for a certiorari partakes of the qualities of a bill of review, or an application for a new trial. It must not be based upon mere irregularities alone, but it must set out facts, which show that the party used diligence to pursue his remedy, or a good, equitable excuse for the want of such diligence ; and which show what the merits of his cause are, and what are his means of hereafter establishing them by proof; by which the determination that has been made against him will, upon another trial, be probably changed. (See Robinson v. Lakey, decided at Tyler, 1857.) In all this the petition is wanting, whatever the real merits of the plaintiff may be, had they been fully disclosed. Judgment below is affirmed.

Judgment affirmed.