Clay v. Clay

• Decision Date: 01 January 1851
• Citation: 7 Tex. 250
• Parties: CLAY AND OTHERS v. CLAY.
• Court: Texas Supreme Court

7 Tex. 250

CLAY AND OTHERS

v.CLAY.

Supreme Court of Texas.

1851.

Where the plaintiffs excepted to the legal sufficiency of the defendant's petition for a certiorari, and the record recited that, on hearing the case on the petition, answer, and record of the proceedings before the justice, it was considered by the court that the judgment of the justice should be reversed, &c.: Held, That the judgment necessarily involved the overruling of the exceptions, and that they could not, as in cases where the final trial is on other issues, be considered as waived.

The act of 1848, to regulate proceedings in case of forcible entry and detainer, does not expressly require that the complaint shall be in writing; that, however, was probably the intention in requiring that the justice shall issue his summons “on complaint, upon oath, of the party aggrieved,” &c. But where the complaint was set out in writing in the summons, accompanied by the affidavit of the party, and no objection was taken before the justice, it was held that the objection could not be taken on the return to a certiorari in the District Court.

Great liberality and indulgence are extended to the proceedings of justices of the peace, who are supposed not to be skilled in the forms of judicial proceedings observed in courts of record. If their proceedings are intelligible, and attain substantially the ends of justice, they are generally sustained. (Note 42.)

Where, in a case of forcible entry and detainer before a justice, the jury returned a verdict for the plaintiff, opposite to which, on his docket, the justice made an entry of “judgment rendered 17th April, 1849,” it was held that there was a sufficient entry of judgment.

The petition for a certiorari, under the 67th section of the act of 1848 to organize Justices' Courts, &c., (Hart. Dig., art. 1753,) must show on its face the error or illegality complained of by the petitioner; or that, by reason of some accident which he could not control, he had not made his defense before the justice. It must be shown that there was an attempt to make the grounds relied on for the certiorari available on the trial; or the reasons why they were not presented must be alleged. (Note 43.)

Appeal from Washington. This was an action of forcible entry and detainer, brought by the appellants against the appellee, before McKnight, a justice of the peace, under the act of 1848. (Hart. Dig., p. 449; see, also, p. 547.) The record contained the original summons, which recited that the defendant, in February, 1846, did forcibly enter, and now forcibly detained from the plaintiff, a certain quarter of a league of land, (which he described,) which was in the peaceable possession of the plaintiffs; that the plaintiffs leased the premises to one Haynes, for a term ending January 1, 1847; that the defendant, holding under said Haynes, unlawfully held over after the expiration of the term, &c. To this summons there was an affidavit of the truth of the facts set forth. The defendant appeared, and moved the justice to nonsuit the plaintiff, on the ground of a want of jurisdiction. This motion was overruled, and the trial postponed, at the instance of the defendant. Afterwards, on the 17th day of April, 1849, the case was tried; a jury was impaneled, who, after hearing the evidence, returned a verdict for the plaintiffs, which was recorded by the justice; and an appeal was taken by the defendant, which was also entered by the justice. The justice entered upon his docket, opposite the verdict, the words, “judgment rendered 17th April, 1849.” The appeal was dismissed in the District Court. More than a year having elapsed from the rendition of judgment before Justice McKnight, scire facias was issued by Justice McDowell, successor in office of Justice McKnight, to revive the judgment rendered by the latter; and a judgment was rendered, reviving the judgment, and awarding a writ of possession, &c. The judgment and proceedings were afterwards removed by certiorariinto the District Court, on the petition of the defendant.

The petition for a certiorari stated the proceedings before Justices McKnight and McDowell; alleged that the case was not within the jurisdiction of a justice of the peace, and that Justice McKnight gave no judgment in the case; that the land belonged to the petitioner, by purchase made more than twenty years before; that he paid a full, fair, and valuable consideration for it, and that by himself, and those claiming under him, he has possessed the land and premises more than seventeen years, has made large improvements, and will suffer irreparable injury if he should be dispossessed.

The plaintiffs excepted to the legal sufficiency of the petition for certiorari. On hearing the case, on the petition, answer, and record of the proceedings before the justices, the court reversed the judgment of Justice McDowell, and dismissed the case, and the plaintiffs appealed.

I. E. Shepard, for appellants. The judgment of the District Court in this case was based upon the ground that there was no judgment rendered by Justice McKnight which could be revived. The verdict of the jury and the entry of “““judgment rendered 17th April, 1849,” is more formal than is often met with in courts of superior jurisdiction. It is, moreover, the manner of entering judgment universally used in Justices' Courts. (4 La. Cond. R., 452; McNeil v. Scoffield, 3 Johns. R.; 2 Id., 181; Baker v. Baker, Tidd. Prac., 965, 992; 4 B. Mon. R., 17.) The judgment sustained by the Supreme Court of the United States in Grignon's Lessee v. Astor, (2 How. R., 319,) was much more defective than the judgment in this case.

Giddings, for appellee.

I. The appellants assign two causes of error:

1st. That the court erred in reversing the judgment by McDowell, justice. 2d. The District Court erred in deciding that McKnight had not rendered a judgment that could be revived, &c.

Now, it does not appear from the record that either of the causes assigned exist. It appears from the record that the court did reverse the judgment rendered by McDowell, and dismiss the case, and that, after a full investigation and hearing of the case. But it nowhere appears in the record that the court overruled the decision of Justice McDowell, or that he decided the judgment rendered by McKnight to be no judgment.

The court here is not informed of any error of law; and without all the evidence, the court will not undertake to investigate the merits of the case. (Punderson v. Love, 3 Tex. R., 60.)

II. But, supposing the causes assigned as error to exist, does the record disclose any error?

No complaint was filed. Without it, the justice had no jurisdiction. The complaint must describe the premises, &c., and lies at the foundation of the action, as much as a petition in the District Court. It may be said the summons and complaint are the same; but it is evident, from the language of the act, that they are not. The summons issues after the filing of the complaint. Then, under this view of the case, the entire proceedings were irregular, and any judgment rendered would be an absolute nullity.

III. The record does not show that McKnight rendered a judgment. The District Court, acting as an appellate tribunal, could not take jurisdiction of the case unless the record showed that a judgment had been rendered below. The justice recorded simply the finding of the jury, which was not the issue submitted by the act--of guilty or not guilty. The act prescribes the manner the judgment shall be entered: “If the jury find the defendant guilty, he shall give judgment thereon for the plaintiff to have restitution of the premises, and shall issue his writ of restitution.” (Hart. Dig., art. 1434.) A judgment is the consideration of the court. The court, here, under this act, is a court of limited and special jurisdiction; and the record must show that the statute has been strictly pursued. The fugitive words, “judgment rendered,” on the opposite page, are not such a judgment as the statute requires.

WHEELER, J.

The question to be determined is, the propriety of the overruling, in...