12 Tex. 314 | Tex. | 1854
It appears by the averments of the petition for certiorari, that the defendant had a good defence to the action before the justice. There is perhaps less certainty, specialty and directness in setting forth the merits of the petitioner’s case, than has generally been held essential, where the legal sufficiency of the petition in these respects has been brought in question by exceptions. And had the plaintiff excepted to the want of certainty in the averments of the petition, his exceptions, by the previous rulings of the Court, must have been sustained. But, by excepting to the petition for the want of equity, and because it did not aver that a new trial had been refused the defendant by the Justice, without objecting the want of sufficiency in the petition in other respects, the plaintiff must, we think, be held to have waived those objections. The only question, therefore, which requires further notice, is whether it was necessary to entitle the defendant to apply for a certiorari, that he should have first made his application for a new trial before the Justice. And we are of opinion that it was not.
We conclude that it was not necessary for the defendant to have applied for a new trial before the Justice, and, of course, that the petition was not insufficient in the respect indicated by the exception.
We are of opinion also that the Court erred in giving judgment against the petitioner and his sureties for the amount of the judgment of the Justice, after having dismissed the petitioner’s case, without having given him a hearing on the merits.
The judgment is therefore reversed and the case remanded for further proceedings.
Reversed and remanded.