G., C. & S. F. R'y Co. v. Odom , 4 Willson 163 ( 1890 )

Opinion by

Hurt, J..

§ 106. Certiorari; petition for must purport to set out all the evidence in the trial court. This suit was instituted in the justice’s court to recover $150 as damages to twenty-three head of beef cattle shipped by appellee from Ballinger, Tex., to Chicago, 111. There was a judgment in said court for $150, and the case was removed to the county court by certiorari. At the first term of the county court appellee filed a motion in due order of pleading to dismiss the certiorari because of the insufficiency of the petition therefor. The motion was overruled, and appellee excepted. Upon trial in the county court, the appellee again recovered judgment for $150, and the company appeals to this court, assigning errors. Odom, appellee, filed cross-assignment of errors, based upon the action of the court in overruling his motion to dismiss the certiorari. The assignment is that the court erred in overruling the motion to dismiss, in this: (1) Because defendant’s petition for said writ neither sets out nor purports to set out all the evidence received on the trial of said cause in the justice’s court; (2) because said petition does not allege or show sufficient merit to entitle the defendant to said writ. The petition fails to allege, directly or circumstantially, the facts that were in evidence on the trial in the justice’s court. It does not purport to set out all the facts, but contains some facts, with several inferences. The writ of certiorari is not granted as a matter of right. The application for it is .addressed to the discretionary power of the court, and should show that the applicant has rights; or a valid defense of which he has been deprived by the erroneous action of the inferior court; or that,-without fault or want of diligence on his part, he has been unable to pre- . sent his rights or defenses. Applying these rules to the petition in this case, it will be found defective in the particulars specified in appellee’s assignment of errors. There is no direct or circumstantial allegation that the evidence or facts therein stated are all the facts proved on the trial below. We are of opinion that the motion to dismiss the certiorari should have been sustained. The judgment of the court below is reversed, and the writ of certiorari ordered dismissed.

May 7, 1890.

Beversed and dismissed.