Weihl v. Davy

6 Tex. 168 | Tex. | 1851

Lipscomb, J.

This case bad been brought into the District Court from the judgment of a justice of the peace bj a writ of certiorari, and it was dismissed by the District Court, but on what grounds the records do not disclose.

Tlie transcript of the record sho’ws that a suit was brought by Davy, the appellee, against Weild to recover ouo hundred dollars, before N. Smith, a justice of the peace; that no defense was made, and the justice on hearing the evidence gave a judgment, for the plaintiff for the one hundred dollars sued for.

The appellant in his application for a certiorari assigns, by way of an excuse for not making the defense before the justice, that lie supposed the plaintiff did not seek more than a recovery of thirty dollars, the balance due to him when-the suit was brought. And to show on what grounds lie rested the supposition he refers to proceedings had of rather an extraordinary character before another justice of the peace, instituted by the present appellee, in which a search warrant was obtained against. Weihl and wife to search for one hundred dollars sworn by tlx; appellee to have been deposited with tlie wife by the affiant. This warrant directed the constable, if tho money should be found, that the parries should be brought before the justice of the peace. The search resulted in the,finding of seventy dollars of tlie money, and in the satisfactory conclusion on (he pint of the justice that (he balance,’being thirty dollars, had been appropriated by t.lie appellant, for which (lie appellee should have his civil remedy; and he directed that the money found, ami then in this court, should bo delivered to the appellee. This suit before Justice Smith was instituted after tlie proceedings on the search warrant in which seventy dollars had been recovered, and permission given to sue for tlie thirty dollars, tlie balance of the one hundred dollars alleged to have been left by the appellee with Mrs. Weibl. Justice Smith gave a judgment for one hundred dollars, without crediting the seventy dollars that had been recovered on the search warrant.

To sustain the appellant’s right to a certiorari two tilings must be shown in the petition: first, some injury in the judgment rendered against him: and secondly, a sufficient reason for not making tlie defense before the justice of the peace. It is manifest from the record that the judgment was for seventy dollars more than it ought to have been; and although it is highly probable Unit if defense had been made tlie judgment would not have been for more than thirty dollars, it was unjust in the appellee to have claimed more than thirty dollars when lie knew that no more than that sum was due him. We believe that in the very extraordinary proceedings on the search warrant a sufficient reason may be found for the appellant’s believing that tlie suit before Justice Smith was for tlie thirty dollars, and that no more would be asked, and sufficiently accounts for his not making any defense. Tlie judgment of tlie District Court dismissing the certiorari is reversed and the cause remanded.

Judgment reversed.