| Tex. | Jul 1, 1871
Hamman brought suit on a mqney demand in the county court, and recovered a judgment for four hundred and .fifty dollars.
The defendant Lewis sought to take the case to the .district court by ¡certiorari. Some doubt is expressed as to the power, of the district ..court, under the Constitution of 1866, to take a case from the county court, on certiorari, when the action is based on a money demand. We think this power is clearly implied in section six, article four. It is therein provided that the district courts shall have power to issue writs of injunction, certiorari,
Under the Constitution of 1845, the case of Titus v. Latimer (5 Tex., 433" court="Tex." date_filed="1849-12-15" href="https://app.midpage.ai/document/titus-v-latimer-4887305?utm_source=webapp" opinion_id="4887305">5 Texas, 433,) was decided. The analogy between the Constitution and laws then in force, and those now in force, makes this case of great weight in deciding the one at bar. No member of the court had any doubt of the power of tho court to bring a case from a justice’s court before it, by certiorari ; but Judge Wheeler thought it could also be done by appeal. (See also O’Brien v. Dunn, 5 Tex., 570" court="Tex." date_filed="1851-07-01" href="https://app.midpage.ai/document/obrien-v-dunn-4887325?utm_source=webapp" opinion_id="4887325">5 Texas, 570; Newsom v. Chrisman, 9 Tex., 113" court="Tex." date_filed="1852-07-01" href="https://app.midpage.ai/document/newson-v-chrisman-4887648?utm_source=webapp" opinion_id="4887648">9 Texas, 113.)
The next question for our consideration is the legal sufficiency of the petition for certiorari. We think that the petition in this case states enough to satisfy the court that the defendant had a meritorious defense to the greater part of the judgment; but the defendant is not clear of negligence in not making his proper defense, and if the plaintiff had been held to the proper proof of his demand, we should be strongly inclined to hold the petition as insufficient. But this was not the case. The note which the plaintiff presented to the court was for seventy dollars. This proved itself; and under the proof, this was all the plaintiff was entitled to recover. The judgment was therefore erroneous, and it may have been oppressive and unjust. (See 17 Texas, 125; 7 Texas, 237; 16 Tex., 551" court="Tex." date_filed="1856-07-01" href="https://app.midpage.ai/document/hooks-v-lewis-4888555?utm_source=webapp" opinion_id="4888555">16 Texas, 551.)
It is very doubtful in our minds whether the judgment of the district court (if any was rendered) is such an one as can be appealed from.
The form of a judgment is not material, so it contains the substance required by law. (5 Texas, 177.) The plaintiff, when his motion to quash was overruled, refused to prosecute his case further, and the defendant had it dismissed for want of prosecution. There is no judgment even for costs. The only portion of the record which contains anything which could properly be regarded as a judgment is that dismissing the motion to quash. This was only interlocutory, and could not be appealed from.
We think the proceedings of the district court were correct in all respects other than in not entering a final judgment for costs. We must regard this case as coram non judice, and dismiss the appeal, with the suggestion that the district court enter judgment nunc pro tunc.
Ordered accordingly.