Hope v. Another
| Decision Date | 01 January 1854 |
| Citation | 11 Tex. 259 |
| Parties | HOPE v. ALLEY AND ANOTHER, ADMR'S. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
It is not sufficient for a petition for a certiorari, to show that the petitioner had a good cause of action or ground of defense; but it must also show that the cause of action or ground of defense was properly presented to the Justice, or a sufficient legal excuse must be shown for the failure so to present it. (Note 44.)
That the cause of action was barred on the day of trial before the Justice, and that an action thereon was then and still is pending in the District Court, are insufficient allegations of defense; they should relate to the date of the commencement of the suit, instead of to the day of trial.
Error from Colorado. The defendants in error recovered judgment against the plaintiff in error, before a Justice of the Peace, for the price of a horse. The defendant in the judgment petitioned the District Court for a certiorari, setting forth, as the grounds of his application, that the plaintiffs' demand, on the day of trial before the Justice, was barred by the statute of limitations; that an action thereon was then and still is pending in the District Court; and that the judgment of the Justice was erroneous. The case, having been removed to the District Court, the plaintiffs in the judgment moved to dismiss the certiorari, for want of sufficiency in the petition, and for various other causes assigned in the motion. The motion was sustained; and the plaintiff in the certiorari brought a writ of error.J. H. Robson, for plaintiff in error.
G. W. Smith, for defendants in error.
Repeated decisions of this Court have settled, that the petition for a certiorari must show some error or illegality, committed by the Justice, to the prejudice of the party complaining; and that it was not in consequence of his neglect or omission to present his case or adduce his evidence before the Justice. It must appear that he had a good cause of action or ground of defense; and that it was properly presented before the Justice; or a sufficient legal excuse must be assigned for the omission. (Ford v. Williams, 6 Tex. R., 311; Clay v. Clay, 7 Id., 250; Pearl v. Puckett, 8 Id., 303.) It does not appear in the present case, that the defendant had any valid defense to urge, or that he contested the plaintiffs' right of action, before the Justice.
It does not appear by the transcript of the proceedings before the Justice, that the plaintiffs' demand was barred...
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