Mays v. Lewis

• Decision Date: 31 December 1849
• Parties: MAYS v. LEWIS.
• Court: Texas Supreme Court

4 Tex. 1

MAYS

v.LEWIS.

Supreme Court of Texas.

December Term, 1849.

The sixty-seventh section of the act of 1848, entitled “An act to organize Justices' Courts and to define the powers and jurisdiction of the same” was manifestly intended to authorize a party to employ the writ of certiorari for the purpose of a revision and readjudication, in the District Courts, of the proceedings of a Justice's Court, upon the merits, upon both the law and facts, where such proceedings are illegal or erroneous, and where injury or injustice has been done; but it does not appear to have been intended that the writ should be awarded where it is not shown that there is any error or illegality in the judgment, or that any injury or injustice has been done.

An application for a writ of certiorari, under the sixty-seventh section of the act of 1848, (Hart. Dig., art. 1753,) should present facts with such circumstantial accuracy and distinctness as to enable the court to determine whether any injury or injustice has in fact been done. General allegations of injury and injustice are not sufficient.

It seems that where a party is duly served with process from a Justice's Court and fails to attend and make his defense, he will not be entitled to a writ of certiorari, under the sixty-seventh section of the act of 1848, on the ground that injustice has been done alone, unless he also show good cause why he neglected to make defense before the justice.

The sixty-seventh section of the act of 1848 prescribes that no writ of certiorari shall be issued unless the party applying shall first give bond with two or more sufficient sureties, &c. We cannot regard a bond with but one surety, however responsible, as a compliance with a statute which requires “two or more sufficient sureties.” (Note 1.)

It has been the uniform practice of our courts to require in statutory bonds if not a strict and literal at least a substantial compliance with every direction and provision of the statute.

Appeal from Guadalupe. The appellant filed his petition in the District Court on the 28th day of November, 1848, praying an injunction to stay proceedings on a judgment rendered against him in favor of the appellee in a Justice's Court, and a certiorari to remove the cause to the District Court.

The petition represents, in substance, that the judgment sought to be enjoined was for interest on a debt for which suit was then pending in the District Court, and to which suit the petitioner had filed his answer, denying the consideration of the notes sued on; that he had paid and satisfied the said interest by work and labor done for the defendant in the petition, who had failed to credit him with the same, in fraud of his rights, &c. Upon this petition the judge, in vacation, awarded the writ. At the Spring Term, 1849, the defendant answered, denying the material allegations in the petition, and at the same time moved to dismiss the proceedings, assigning for causes--

1st. The want of equity in the petition.

2d. That the writ of injunction was not sued out within six months from the original judgment.

3d. That the petitioner had not given bond in conformity with the statute.

The court sustained the motion, and the plaintiff in the certiorari appealed.

Sneed, Oldham & Neill, for appellant.

W. R. Lewis, for appellee.

WHEELER, J.

For the appellant, it is insisted that the court erred in dismissing the proceedings in the certiorari; and the propriety of this ruling of the court is the only question presented for our consideration.

The act of 1848 (11 Stat., 297) provides that “no writ of certiorari shall be granted,” &c., “unless the party applying for the same shall make an affidavit in writing, setting forth sufficient cause to entitle him to such writ,” “and no such writ shall be issued unless the party applying shall first give bond with two or more sufficient sureties,” &c. And the act further provides that “the case may be reviewed and tried de novo.”

By these provisions of the statute it manifestly was the intention of the Legislature to authorize a party to employ the writ of certiorari for the purpose of a revision and readjudication, in the District Court, of the proceedings of a Justice's Court, upon the merits, upon both the law and facts, when the party applying for a writ is aggrieved by a proceeding illegal or erroneous, and in which injury or injustice has been done him. But it does not appear to have been intended that this writ should be awarded when it does not appear that there is any error or illegality in the judgment sought to be revised, or that any injury or injustice has been done the party applying for the writ. It is not pretended in the present case that there was any illegality or error committed by the justice in the proceedings and judgment in question. The application for the writ does not present facts with such circumstantial accuracy and distinctness as to enable the court to determine whether any injury or injustice has in fact been done the party. But if he has sustained an injury, there is no pretense that it was not in consequence of his own negligence and laches. Though duly served with process, he did not appear before the justice to assert his rights. He does not pretend that he was prevented from doing so, or from taking an appeal in the ordinary mode from the judgment by which he now professes to have been aggrieved. The party appears to have shown no “sufficient cause” to entitle him to the writ. It seems to us, therefore, to have been improvidently awarded, and that the proceedings were rightly dismissed, as having been irregular and unauthorized in the first instance. (1 Overt. Tenn. R.,...