Clark v. Hutton

28 Tex. 123 | Tex. | 1866

Smith, J.

—The writ of certiorari is not granted as a matter of right; the application for it is addressed to the discretionary powers of the court, and it must be made to appear that the applicant has rights, or a valid defense, of which he has been deprived by the erroneous action of the justice of the peace, or that he has been unable to present them from no want of diligence or fault on his part.

The errors complained of should be distinctly stated, and not consist of mere irregularities in the proceedings.

A statement of all the facts proved should be embraced in the application, and, if he have rights that he has not been able to present, they should be averred, with the excuse for not presenting them, so that the court can determine for itself whether the applicant has any merits in his cause, and been unjustly deprived of them and injured. (Robinson v. Lakey, 19 Tex., 140; Given v. Blocker, 23 Tex., 633.)

The applicant for the writ does not pretend to set forth all the facts that were proven before the justice of the peace. He states that Hutton proved that a patent for the land was issued to him, February 4, 1860, as the assignee of Lewis C. King, in virtue of his claim as a settler; that he, Clark, proved that the latter never resided or lived upon the land; and that he and his vendor, John A. King, had resided upon the land since the 26th day of August, 1856, claiming it as their own. While it may be admitted that this statement of the facts proved before the justice of the peace is not false, still it may have been proved that Clark, or his vendor, entered upon the land as the tenant of Hutton; or some other grounds may have been proved, going to establish the correctness of the judgment of the justice of the peace. (Jones v. Lane, 12 Tex., 179.)

It is true, that the title to the land, as a general rule, cannot be involved in the trial of an action of forcible entry and detainer, but the applicant for the writ of certiorari in such cases should set forth his title or rights, whether proved or not, in order to show that he has merits in his claim or defense, and that there is good reason to apprehend injustice has been done him. (Hooks v. Lewis, 16 Tex., 551.) In view of this rule, the application of Clark for the writ of certiorari does not address itself to the favorable consideration of the court. It appears that the land was patented to Hutton a few months before the institution of this suit, which would create the presumption that he is the true owner, while he, Clark, did not prove or even assert more than a bare possession df the premises, and has not even averred in his petition a right of possession. We cannot see much merit in the applicant’s claim, or that injustice has in fact been done him; but, on the contrary, the judgment rendered by the justice of the peace appears to be according to the rights of the parties, as manifested in this cause; and we are of opinion there was no error in sustaining the motion to quash the writ and dismiss the cause.

The appellant complains that the court erred in awarding the writ of procedendo to the justice of the peace. The dismissal of the cause for want of merit or equity in the petition operated to revive the judgment in the justice’s court, and the writ of procedendo was properly awarded. (Given v. Blocker, 23 Tex., 633; Miller v. Holtz, Id., 139.)

There being no error in the judgment of the District Court of which we can take notice, the same is

Affirmed.