Oldham v. Sparks

28 Tex. 425 | Tex. | 1866

Willie, J.

—In the view which we take of this case, it is unnecessary for us to decide whether or not an amendment can under any circumstances be allowed to a petition for a certiorari. The court below did not in this instance err in refusing the amendment proposed, for the r.eason that the petition as thus amended would still have been insufficient to justify a writ of certiorari. It did not disclose any good defense to the action brought in the justices’ court. On the contrary, if the evidence before that court was precisely what it is stated to be in the petition, judgment was properly rendered for defendant in error.

The fact that no proof was made, that plaintiffs in error had collected the bill of costs, was not sufficient to exonerate them from liability. Gross neglect by an attorney at law in failing to collect a claim received by him for that purpose would render him liable to his client for the amount of damages consequent upon such negligence. (Cox v. Livingston, 2 Serg. & Rawle, 103.)

There is nothing in the petition which negatives the existence of such neglect in the present case. On the contrary, the facts that the claim was in the hands of plaintiffs in error several years without any effort being made to collect it, and that it became barred by limitation whilst in their possession, and they have rendered no reasonable excuse therefor, show sufficient negligence on their part to entitle the defendant in error to the judgment she obtained before the justice of the peace.

The agreement between Oldham, Costley, and Sparks, so vaguely stated in the petition for certiorari, furnishes no excuse for not collecting the claim. This agreement is without any new consideration as to Sparks, the time when it was made is not stated with any certainty, and moreover no diligence is shown on the part of plaintiffs in error to collect the claim out of fees due Costley in Travis county. From aught that appears, they were as much in default in enforcing this agreement as they were in prosecuting the original claim for costs.

The allegations of the petition for certiorari are vague and indefinite; there is no such fullness and certainty in the averments as will show what the case really was before the justice of the peace. The petition does not purport to state all the evidence produced on the trial in that court, nor does it show that any material error occurred in the proceedings, nor that injustice had been done the petitioners, nor that they had been unable to avail themselves of any legitimate defense. (Phillips v. Parr, 19 Tex., 91; McKenzie v. Pitner, Ib., 135.)

There is no error in the judgment, and it is

Affirmed.