Crawford v. Crain , 19 Tex. 145 ( 1857 )

Wheeler, J.

The certificate of the Clerk was prima facie evidence of the plaintiff’s right. (Flores v. Thorn, 8 Tex. R. 377.) But it appeared upon the face of the certificate, that a considerable portion of the claim was barred ; and the petition avers that the Statute was relied on at the trial before the Justice. Yet the Justice gave judgment for the full amount. On this ground the motion" to dismiss the certiorari was rightly -overruled.

It is objected that it does not appear by the petition, that the certiorari was applied for in time. It, however, does so appear by reference to the Justice’s transcript, which was before the Court when the motion to dismiss was made ; and we have repeatedly held that upon a motion to dismiss a certiorari the Court may look to the transcript brought up from the Justice’s Court, to aid in determining upon the motion. Besides, this ground was not embraced in the motion; and the party will be confined in this Court to the grounds of his motion in the District Court. The Court did not err in overruling the motion to dismiss.

But the judgment upon the merits is erroneous. Judgment for the costs having been rendered against the party at whose instance the witness was summoned, the witness had his election of two remedies; either to avail himself of the execution upon the judgment for the recovery of his fees, or to bring suit against the party primarily and directly liable to him, in case of his refusal to pay. If he chose the latter remedy, the only restraint, as to time, was the Statute of Limitations. (Flores v. Thorn.) He was not precluded from claiming his dues of the party, by his failure to have them taxed before the issuance of execution. It might have been otherwise if the costs had been adjudged against the opposite party; for then his failure would have prevented the party recovering them from collecting them upon his execution. But as the execution was against the party liable originally to the witness, he was not bound to avail himself of that remedy. The Court, therefore, erred in the charge to the jury, and the judgment on the merits is erroneous. The judgment is reversed and the cause remanded.

Reversed and remanded.