Perry v. Rohde

| Tex. | Jul 1, 1858

Hemphill, Ch. J.

The only objection to the judgment before the magistrate, (which was brought up by certiorari,) is that service was not had on defendant five full days (exclusive of the day of service and return) before the trial. The defendant did not appear, and judgment was entered by default.

The magistrate might and ought to have refused to proceed until the succeeding Term of his Court, and the error in thus proceeding, or the defect of service, is good ground for the certiorari. The defendant may have supposed that the Court would not act until service was perfected, and that such would be the. time to set up his defence.

But although this maybe sufficient ground to remove the case to the District Court, yet it is not good cause to quash the proceedings before the Justice, and remand for proper service of the writ. The ends of justice do not require such a mode of procedure. The trial is de novo in the District Court, and a meritorious defence would be as available in that Court, as before the Justice. If there be such defence, relief can be had without remanding the cause. If there be no defence, the defendant is not injured, whether the judgment be in the one Court or the other.

A different rule obtains where there is an appeal from a judgment by default in the District Court, on the ground of defective service. There is no trial de novo in the Supreme Court; and the defence, if any, would be wholly excluded, unless on new trial in the Court below.

The judgment in this cause was on the merits, and there being no error it is ordered that the same be affirmed.

Judgment affirmed.