11 Tex. 259 | Tex. | 1854
Repeated decisions of this Court have settled, that the petition for a certiorari must show some error or illegality, committed by the Justice, to the prejudice of the party complaining; and that it was not in consequence of his neglect or omission to present his case or adduce his evidence before the Justice. It must appear that he had a good cause of action or ground of defence; and that it was properly presented before the Justice; or a sufficient legal excuse must be assigned for the omission. (Ford v. Williams, 6 Tex. R. 311; Clay v. Clay, 7 Id. 250; Pearl v. Puckett, 8 Id. 303.) It does not appear in the present case, that the defendant had any valid defence to urge, or that he contested the plaintiffs’ right of action, before the Justice.
It does not appear by the transcript of the proceedings before the Justice, that the plaintiffs’ demand was barred by the statute. It was no ground of defence, if true as alleged, that the statutory bar had interposed at the time of the trial before the Justice, or that an action was then pending in another Court, upon the same demand. To have rendered the statute of limitations, or the pendency of another suit for the same cause, availing as a defence, the demand must have been barred, or the former suit pending, not at the time of trial, merely, but at the time of the commencement of the suit before the Justice. This is not averred, and it does not appear, therefore, that the defendant had any legal defence to the action.
But if the petition had stated any valid ground of defence, there is no averment that the defence was presented or attempted to be presented before the Justice; nor is any reason assigned for the omission. And for this reason also, the petition is manifestly insufficient. This opinion will supercede the necessity of considering the various other questions presented
Judgment affirmed.