Peabody v. Buentillo , 18 Tex. 313 ( 1857 )

Wheeler, J.

The petition is manifestly insufficient, in that it discloses that the defendant failed to make his defence before the Justice, and does not show any excuse for the omission. If he had a defence, it was incumbent on him to present it before the Justice. Having failed to do so, he has no cause to complain of the rendition of judgment against him. For aught that appears, the Justice decided rightly upon the case as presented. He could not have decidedly differently, upon the proof, as stated in his record. If the defendant was unavoidably prevented from making his defence, he should have stated the fact. As presented by his petition, the case comes within the repeated and uniform rulings of this Court, to the effect that a party to a judgment rendered by a Justice of the Peace, cannot have a certiorari to remove the case into the District Court, on account of any matter of which he might have availed himself before the Justice, but which, without any apparent legal excuse, he neglected to urge. (Haley v. Villeneuve, 11 Tex. R. 617; Hope v. Alley, Id. 259, and cases cited.)

The allegation that the Justice had no authority to render judgment at the time, appears to be but the opinion or conclutiion of the petitioner, without disclosing the facts upon which it is founded. The petition should staté facts in order that the Court may deduce the legal conclusion.

The transcript of the proceedings before the Justice shows that the Court had jurisdiction of the parties and the subject matter ; and the presumption is that the judgment was rendered rightly, and upon evidence legal and sufficient, until • the contrary appears. There is no error in the judgment and it is affirmed.

Judgment affirmed.