Davis v. Darling

• Decision Date: 01 January 1858
• Citation: Davis v. Darling, 20 Tex. 803 (Tex. 1858)
• Parties: JOHN DAVIS v. SOCRATES DARLING.
• Court: Texas Supreme Court

20 Tex. 803

JOHN DAVIS

v.SOCRATES DARLING.

Supreme Court of Texas.

1858.

Where the plaintiff in error has failed to describe the judgment properly, in his petition, he may file a new one, and have the defendant cited thereon, if done in time to be returnable at the same time as the first.

The general exception, made by the plaintiff in error, to dismiss the certiorari, should have been sustained. The only diligence shown by the defendant in error, in his petition (for certiorari) in making his defense before the justice, was in leaving a message for an attorney to attend to his case. He gave it no further attention, and was not present at the trial, and gave no excuse for his absence. The fact that the attorney was previously employed on the other side, and did not take the trouble to hunt him up and inform him of it, even if he received the message, is no excuse whatever.

Error from Fayette. Tried below before the Hon. James H. Bell.

Petition for certiorari, filed March 2d, 1855, as follows:

The petition of Socrates Darling, a resident citizen of the county and state aforesaid, respectfully showeth, that heretofore, to wit: on the _____ day of _____, one John Davis, also a citizen of said county and state, instituted suit against your petitioner before N. C. Joiner, an acting justice of the peace in and for said county for the sum of $60. Your petitioner alleges that he did not reside in the precinct where the said suit was instituted, but lived in a precinct some 18 or 20 miles distant, in the said county, in which precinct there was an acting justice of the peace, and that the supposed cause of action accrued, if at all, in the precinct last aforesaid. Your petitioner alleges that when he was served with the citation to appear before the said N. C. Joiner, he was impressed with the belief that it was illegal, and that it would only be necessary for him to claim the right to be sued in his own precinct; that he went to the town of LaGrange, to see Jno. W. Chandler, Esq'r, to request him to claim this right for him, and have the said suit dismissed; that he found the said Chandler absent, and found in the said Chandler's office his relative, Mr. Duncan, and he left a message with the said Duncan to engage the services of the said Chandler, as aforesaid. Petitioner now alleges that he was never informed by the said Chandler that he could not attend to his request, and hence he made no other arrangement, and did not deem it necessary for him to appear in person to attend the said suit at the trial; and your petitioner was greatly surprised when he learned after the trial, that he was not represented, and that the said Chandler was adversely engaged in the prosecution of the said suit against him; that the said justice proceeded to give judgment against your petitioner for the said sum of $60 and costs of suit, on the 2d day of January, 1855. Petitioner alleges that if he had been represented in said cause, good and legal defenses would have been urged against the unjust demand of the said Davis; that he in truth and in fact did not owe him one cent. Your petitioner, on the 5th day of January, 1855, filed an application for a new trial according to law, setting forth the above facts, which was overruled by said justice, a copy of which said application is hereto appended; and now your petitioner will be irremediably wronged, unless he can obtain a writ of certiorari to remove the said cause to the district court. He therefore prays, etc.

The showing for new trial before the justice, was in substance the same as the above petition. The order for certiorari was given by the Hon. John Hancock, then judge of the second judicial district, in which Fayette county then was. The certiorari was served April 6th, 1855, and the citation to Davis, April 26th, 1855; and both, with the justice's return, were filed September 3d, 1855. Then followed the motion of Davis to dismiss, filed at spring term, March 25th, 1856. At same term, the motion to dismiss was overruled, the Hon. Thomas H. DuVal presiding; and there was a bill of exceptions to such ruling, signed by the judge; but it was in general terms, not...