Jones v. Nold

22 Tex. 379 | Tex. | 1858

Bell, J.

The error relied on is, that the District Court erred in overruling the motion to dismiss the petition for certiorari.

A petition for certiorari, ordinarily, should state substantially the whole of the evidence introduced on the trial before the justice of the peace, so that the district judge, to whom the application for certiorari is presented, may see the whole case, as it was developed before the inferior court. The petition, in the present case, does not purport to state the whole of the evidence on the trial before the Justice’s Court. It does not state what evidence was introduced by the defendant; nor does it state that the defendant introduced no evidence before the magistrate.

This petition would therefore be insufficient, but for the fact that it contains the averment, that the justice rendered judgment in favor of the plaintiff, for a portion of his demand, and at the same, time rendered judgment in favor of the defendant for the costs. This judgment would not be authorized, but in the single case of a tender, made before the institution of suit, and the payment of the money into court. The transcript from the Justice’s Court, which was before the District Court, when the motion to dismiss the petition for certiorari was made, did not disclose the fact, that the defendant had made a tender, before the institution of suit by the plaintiff, and had paid the money into court. The transcript from the Justice’s Court, therefore, did not afford any explanation of the judgment rendered by the justice.

The District Court will always look to the transcript from the Justice’s Court, when considering a motion to dismiss a petition for certiorari. (Aycock v. Williams, 18 Tex. Rep. 393; Spivy v. Latham, 8 Humph. Rep. 703; Edde v. Cowan, 1 Sneed’s Rep. 290; Crawford v. Crain, 19 Tex. Rep. 145.)

This petition, then, presented to the District Court the case of a judgment necessarily erroneous, except upon the supposition that there had been a tender, before the institution of suit, and the payment of the money into the Justice’s Court, at least before verdict. The question of the sufficiency of the petition for certiorari, is, therefore, narrowed down to the single question, whether or not the petitioner ought to have stated that there had been no tender, before institution of suit, &c. We do not think such strictness ought to be required. In the case of McKensie v. Pitner, 19 Tex. Rep. 135, this court said, “ There should be a reasonable degree of certainty in a petition “for certiorari, but not that extreme degree, which is described “in law as certainty to a certain intent in every particular, “and which rebuts every conclusion to the contrary.” In the case of King v. Longcope, 7 Tex. Rep. 236, it was said, that “a certiorari ought to be granted, where, from the averments “of the petition, if true, it appears that the party has merits, “and there is reason to apprehend that injustice may have been “done him, without any fault of his.” The same was said, in the case of Hooks v. Lewis, 16 Tex. Rep. 551, and in Connally v. Renn, 17 Id. 123. Tested by these rules, we think the petition for certiorari, in this case, was sufficient; and that the court did not err in overruling the motion to dismiss it. Another consideration is, that the trial, in the District Court, seems very clearly to have attained the ends of justice. The judgment is affirmed.

Judgment affirmed.