Davis v. McGehee , 24 Tex. 209 ( 1859 )

Roberts, J.

This case was submitted upon a suggestion of delay. Upon examination of the record, it appeared that Samuel H. Davis signed the note “for” James H. Davis, and not for himself. Supposing that there had been some mistake in the transcript, the attention of defendants’ counsel was called to it, and it was handed back to him, to enable him, if he thought proper, to take measures to have it corrected, or that he might consider the course to be pursued, to meet or obviate this apparent difficulty, thus standing in the way of getting the judgment affirmed.

At a subsequent day, the court was informed, by counsel appearing for the defendant, that the clerk of the District Court, of Bexar county, was here, and had made the correction in the record, according to the original note attached to the petition here in his possession, and asked a certiorari to perfect the record. The court informed the counsel that his motion should be in writing. Whereupon, the motion for a certiorari was made, referring to the original petition, with the note attached, as the ground and support of the motion.

The motion is not sustained, because the original petition is not a paper which should be retained in this court as the foundation of its action, but belongs to the District Court, of Bexar county. There is no affidavit of the facts, in support of the motion, showing the mistake in the record.

The record having been returned to the court with this motion, now appears to be corrected, and instead of the word “for,” the abbreviation “jr.” is inserted after the name of Samuel H. Davis. We cannot recognise any such correction. We are satisfied that it was made imprudently, without thinking of its great impropriety.

Roberts, J.

The motion for certiorari is not sustained, because there is no affidavit made, showing a mistake in the record, nor is there anything shown in support of the motion, which would be a proper foundation for the action of this court.

The record shows, that Samuel H. Davis signed the note “for” James H. Davis; and it does not appear that he signed it for himself. The judgment by default is against him, Samuel H., as well as the other defendants. Therefore, as to him, the petition, as presented in the record here, does not contain a cause of action. Judgment is reversed and cause remanded.

Reversed and remanded.