Mays v. Lewis

4 Tex. 1 | Tex. | 1849

Wheeler, J.

For the appellant, it is insisted that the court erred in dismissing the proceedings in the certiorari; and the propriety of this filling of the court is the only question presented for bur consideration.

Tiie act of 1848 (11 Stat., 297) provides that “ no writ of certiorari shall he “granted,” &c., “ unless the party applying for the same shall make an affidavit “in writing, setting forth sufficient canso to entitle him to such writ,” “and “no such writ shall he issued unless (lie, party applying shall first give bond “ with two or more sufficient sureties,” &e,. And tlie act further provides that “the case may lie reviewed and tried de novo.”

By these provisions of tlie sfaiute it mnnifosfly was tlie inleniion of tlie Legislature to authorize a party to employ (lie writ, of certiorari for the purpose of a revision and readjudication, in tlie District Court, of the proceedings of a Justice’s Court, upon the merits, upon both tlie law and facts, when tlie party applying for a writ is aggrieved by a proceeding illegal or erroneous, and in which injury or injustice lias been (lone him. But it does not appear to have been intended that this writ should he. awarded when it does not appear that there is any error or illegality in (he judgment sought to be revised, or (hat any injury or injustice has been done the party applying for tlie, writ. It is not pretended in the present ease that there was any illegality or error committed by the, justice in tlie proceedings and judgment in question. Tlie application for tlie writ does not present'facts with such circumstantial accuracy and distinctness as to enable tlie court to determine whether any injury or injustice lias in fact been done the party. But if ho lias sustained an injury, there is no pretense that it was not in consequence of liis own negligence and luches. Though duly served with process, lie did not appear before, tlie justice to assert his’rights.’ He does not protend that lie was prevented from doing so, or from taking an appeal in the ordinary mode from tlie judgment by which lie now professes to have been aggrieved. Tile party appears to have shown no “ sufficient cause ” to entitle him lo tlie writ. It seems to us, therefore, lo have been improvidontly awarded, and that tlie proceedings were rightly dismissed, as having been irregular and unauthorized in the first instance. (1 Overt. Tenn. R., 377, 60; 2 Hawk’s N. C. R., 100: 8 Yerg. R., 164; 5 Id., 108; 3 Dev. R., 377; 1 Blackf. R., 414; 8 Yerg. R., 222: 9 Wend. R., 433; 12 Id., 292.)

In Tennessee it is held that a certiorari will be dismissed if tlie party does not show why an appeal was not resorted to ; and also for the, want of merits on the, face of the, petition. (2 Overt. Tenn. R., 110.)

But wo are, of opinion that tlie certiorari was rightly dismissed, for the further reason that tlie parly prosecuting the writ did not give bond with two sureties, as required by tlie sfaiute.

We are referred by counsel for tlie appellant to (.be cases'of Foster r. Blount (1 Tenn. R., 343) and Johnson's Assignee v. Williams, (2 Id., 178.) where tlie Supreme Court of Tennessee appear (o have held (hat the statute of that State requiring (wo sureties upon the, bond given for prosecuting an appeal or cer-tiorari is directory and need not be literally complied with, and that one surety will be sufficient., if satisfactorily responsible; and the court say it lias been so decided in North Carolina, referring probably (though the. case is not cited) to the ease of Fleming v. Williams, (2 Hay. R., 400.) But in (he comparatively recent cases of Jones v. Sykes (1 Murph. R., 281) and Gibson v. Lynch (Id., 493) the law is held otherwisehiNorl.il Carolina. The decisions in Tennessee, referred to were probably the result of a practice founded on the early decision referred to in North Carolina, but which lias since been departed from in that State; and they appear to have received lint little consideral ion.

In Massachusetts it is held (hat an appeal will not have any effect where the statute requisitions as to security to prosecute it are not complied wiili. (22 Pick. R., 11; 17 Id., 295.) The, principle applies equally to the. case of a cer-tiorari, and it is believed to bo in accordance with the current of decisions upon the, subject.. (1 Bibb R., 214; 1 Da. R., 589; 5 How. Mi. R., 298; 2 S. & M. R., 215; 3 Green R., 155.) No ease is recollected in which Ibis exact question has been decided hero ; but it lias been the uniform practice of our courts to require in statutory bonds if not a strict and literal at least, a substantial compliance, with every direction and provision to the statute. This, it is conceived, has not been done in the present case. We cannot regard a bond with but one surety, [5] however responsible, as a compliance with' a statute which requires ufj*vi isv nwre suifioieiit sureties.” TPc re°:i *.l ¡V; statute intended to see r 10 th<* 'kteinlant. hi the certiorari a r* *' a:**! ’-e ho not.fed authorized, to ■ y him iíit rhyht -which thelaw ■. YTI¡ 4 he. statute ha*i deelarert tin, i ** no \vr!i * l certiorari shall be issued : * -slU ^^-rty applying shall have u¿‘ n bond wh two or more sufficient ■ - 'v.v’ -L iold that the, writ; may be i “hmI upon giving bond with one sure./ only wo .■ 1 be, it seems to us, to repeal the stauae.

Kotr 1.—Cotton v. Gammon,post, 83; Shelton a. Wade, post., 148. Whore tlie bond for a ccrtio• rari has but one surety, it is not void, bat may bo amended by ¡Living «-a additional surety alter tho ease has been removed to the District Court;. (Berry v. Martin, 6 T.. 261.) Tho plaintiff was allowed lo exoíuiio a new bond when the first bond was not Conditioned as the law requires and was not under seal. (Edmiston v. Edwards, 31 T., 172.) See Hollis v. Border, 10 T., 277; Smith v. Cheatham, 12 T., 37; Scranton v. Bell, 33 T., 413; Long Smith, 39 T., 160; King v. Hopkins, 42 T., 48. Executors and administrators are not exempt from giving certiorari bonds, (Ledbetter v. Swing, 19 T., 242.)

J udgme 111 a ffirmed.