23 Tex. 138 | Tex. | 1859
Lead Opinion
The appellee, Anthony Holtz, sued the appellant in the court of a justice of the peace, and obtained a judgment. Miller, the present appellant, obtained a writ of certiorari, and removed the cause to the District Court. In the District Court, Miller obtained a rule for security for costs against Holtz, and at the next term of the court after the rule was made, Holtz having failed to give the security, the cause was dismissed from the docket, upon motion of Miller. After the cause was dismissed from the District Court, the magistrate, or, to be more particular, the successor in office of the magistrate who rendered the original judgment in favor of Holtz against Miller, issued an execution against Miller for the amount of the judgment. Miller then obtained an injunction from the district judge, enjoining all proceedings by the sheriff, the magistrate and Holtz, upon the magistrate’s judgment, and the execution issued by virtue of it. Holtz then made his motion in the District Court to dissolve the injunction which Miller had obtained, and the district judge dissolved the injunction. The case now before us is an appeal from the decree of the District Court, dissolving the injunction.
The writ of certiorari removed the case from the magistrate’s court to the District Court, and the magistrate’s court could
But it is only in the single case of the quashal of the writ of certiorari by the District Court, for want of merits in the petition for the writ, or because there is no sufficient bond, that the judgment of the justice’s court is revived. The writ takes the case from the jurisdiction of the justice’s court, and it becomes a suit in the District Court, to be tried de novo, just as if it had been originally instituted in the District Court, subject, of course, to such rules and limitations as the law has prescribed for the trial of such causes. When the cause is removed to the District Court, the plaintiff in the justice’s court is the plaintiff in the District Court, and he is under the same obligation to prepare, for trial, and to prosecute his cause, as every party is, who sues originally in the District Court. If he fails to prosecute his suit, it may be dismissed, upon the motion of his adversary; but the dismissal of it for want of prosecution, would not revive a judgment which had been rendered in his favor in the justice’s court. In such case, the dismissal does not operate upon the writ of certiorari. There is no judgment that the writ of cer
It is not necessary for us now to decide, whether or not it was error in the District Court to require the plaintiff to give security for the costs. In the case of Foreman v. Gregory, 17 Texas Rep. 193, it was held, that where a defendant in the justice’s court, removes a case to the District Court by certiorari, the plaintiff cannot be required in the District Court to give security for the costs on the motion of the defendant. Whether it was proper in this case, for the District Court to make the rule against the plaintiff or not, the dismissal of the cause for failure on the part of the plaintiff to comply with the rule, was not such a dismissal as revived the judgment of the justice’s court, or authorized the issuance of execution on that judgment. It was not a dismissal, or quashal of the writ of certiorari. It was a dismissal of the litigation of the suit, because an order of the court was not complied with. If the plaintiff was not subject to the rule for costs in the District Court, then the dismissal of the cause by that court, for want of a compliance with the rule, was a judgment from which the plaintiff ought to have appealed.
From these views it follows, that the justice of the peace had no authority to issue the execution against Miller; that the injunction to restrain the proceedings of the justice and sheriff upon that judgment and execution, was properly granted, and ought to have been perpetuated.
The judgment of the court below is reversed, and the cause remanded, with instructions to the court below to proceed in conformity with this opinion. •
Dissenting Opinion
dissenting.—The act organizing justices’ courts gave the right, after judgment in that court, to remove the cause into the District Court for revision, by certiorari, as well as by appeal; and provided that the cause might be “ reviewed and tried de novo," (Dig. Art. 1753, Acts of 1852, ch. 70, p. 60.) It
The first case which came before the court by certiorari, after the case of Titus v. Latimer, 5 Texas Rep. 433, had decided the provision of the act, giving an appeal, unconstitutional, was the case of O’Brien v. Dunn, reported in the same volume. (Id/ 570.) In that case Judge Lipscomb entered upon an elaborate review of the law upon the subject of the proceeding by certiorari; and held, that although the statute was unconstitutional, in so far as it gave a direct appeal to the District Court, yet in other respects it was constitutional, and in force; and the provisions regulating the trial in the District Court upon appeal, were applicable to a case removed into that court by certiorari. (Id. 577.) In respect to the use of the writ in other states, the judge said: “We have before observed, that although there is much uniformity in the decisions of the several state courts, as to the grounds on which the writ of certiorari should be issued, they are far from being uniform in practice, in the mode of trying and disposing of the case, when it has been so brought up. In Virginia, and most of the states east, the writ of certiorari is regarded as a writ of error; and they will not try any question of fact, but only decide the law arising from the matter complained of in the petition, and this from the return of the justice of the peace; and will reverse, affirm, or remand. In North Carolina, Tennessee, and Alabama, if there is sufficient ground for sustaining the writ, shown in the petition, on which it was
The case of O’Brien v. Dunn, is in harmony with the decisions in cases of certiorari, before the case of Titus v. Latimer was decided, and with repeated decisions since, in which it has uniformly been held, that the provisions of law regulating proceedings in the justice’s court, and in the District Court, in cases brought there by certiorari, are unaffected by the decision in Titus v. Latimer; that that case had reference solely to the mode of removing the case into the District Court for revision ; when removed there by certiorari, it occupies in all respects precisely the condition of an appeal. (5 Texas Rep. 577.) Whether it be to review a judgment of the justice’s court, or the Probate Court, it is governed by the same principles and rules of procedure. (Moore v. Hardison, 10 Texas Rep. 467; 9 Id. 113; Poag v. Rowe, 16 Id. 590; Ray v. Parsons, 14 Id. 370.) The jurisdiction of the District Court to hear and determine the cause, and the proceedings and judgment, are in both cases the same. That they have been uniformly so considered and treated by the decisions of this court, no one at all conversant with the decisions, can for a moment doubt. Accordingly, in Foreman v. Gregory, 17 Texas Rep. 193, it was decided, that “ where a defendant removes a case from a justice’s court into the District Court by certiorari, the plaintiff or appellee cannot be ruled to give security for costs, on the motion of the defendant, or appellant.” In delivering the opinion of the court, Chief Justice Hemphill said: “ Although a plaintiff, under Art. 801, Hart. Dig., may be ruled to give security for costs, yet the appellee, in a case where a magistrate’s judgment is brought up by certiorari to the District Court, is not such plaintiff, as comes within the meaning of this section of the statute. Whether he
This view of the question resulted naturally and necessarily from the doctrines uniformly maintained upon this subject in former decisions. I think it manifestly the sound and correct view, and the only one which can be maintained on principle. Such, heretofore, has been the unanimous opinion of this court. We now hold directly the contrary. It seems to me, that the view now taken of the office of a certiorari, is not in accordance with the office assigned to the writ at the common law, or by our statutes and adjudications. The necessary consequence of the decision in Foreman v. Gregory is, that the dismissal of the certiorari had the same effect as the dismissal of an appeal, or writ of error; it left the judgment of the justice remaining in full force, just as if no appeal or certiorari had been prosecuted from the judgment. So it has been heretofore considered. After dismissing the certiorari, the only further action which the court could take, it was said by Judge Lipscomb, in Ahrens v. Giesecke, was “ to have awarded a procedendo to the justice of the peace, to proceed to have his judgment executed.” (9 Texas
It can make no difference when, or for what cause, the certiorari was dismissed; the effect must be the same, whatever the cause of dismissal. If the plaintiff in the certiorari saw proper to have it dismissed, the defendant was not required to resist it; he was not the actor in that proceeding, and had no interest to maintain it. The statute required the plaintiff in the certiorari to give bond and security for its prosecution in the District Court; the defendant could not be required to give the security; and if the former saw proper to procure, or suffer his certiorari to be dismissed from the court, because the defendant had not given security, or for any other cause, that was his own concern. It was a virtual abandonment of his appeal, or certiorari ; and left matters just as they were before it was obtained.
If the defendant in the certiorari be required to give security for the costs of the proceeding in the District Court; if he, and not the plaintiff, is the party from whom the security is required; it is difficult to understand, why the legislature should have prescribed the giving of bond and security by the plaintiff, as a condition precedent to the proceeding in the District Court. To shift the burden of giving the bond and security from the plaintiff to the defendant in the certiorari, would he, it would seem, to supersede the provision of the statute, and render it nugatory; in effect, to repeal it, and substitute another provision in its stead, (Dig. Art. 801,) intended by the legislature to apply to suits originally brought and prosecuted in the District Court, and not to suits brought there by appeal or certiorari from the justice’s or the Probate Court.
It can make no difference, that the trial in the District Court is de novo. So it is in cases brought by certiorari, or appeal, from the Probate Court. It is designed more certainly to attain the substantial justice of the case. Requiring the parties to occupy the same attitude upon the trial which they occupied in the inferior court, is a rule of practice adopted for convenience
As the former decisions and practice of the court are called in question, I have adverted to the reasons and grounds on which they have proceeded, more at length than the importance of the case, or of the question directly under discussion, would otherwise seem to require. If the present were a case of the first impression, I might not have thought it necessary to express my dissent publicly; for, upon such a question, it is of less consequence what rule is adopted, than that, when adopted, it should be consistently maintained, in order that the law and rule of practice may have the consistency and certainty essential to constitute a rational or a tolerable system of jurisprudence. It
If the volumes of published decisions do not contain the law for future cases, coming within the same principle, where the question was fully considered and deliberately decided, it is difficult to perceive what benefit is to be derived from their publication. As has been said by Chief Justice Parsons,—“ Former decisions, if not furnishing a rule for posterior ones, would be worse than useless, as they would tend to mislead and perplex, without furnishing any useful information.” (9 Mass. Rep. 367.) It seems to me, that there is quite uncertainty enough in the application of the law to cases as they arise, without unsettling what has been well and deliberately decided, and changing the rule of decision, even upon questions of practice, in themselves comparatively indifferent, with every change in the judicial mind. "It is this view of the subject, which has seemed to me to require so full an expression of the grounds of my dissent from the present determination.
Reversed and remanded.