Western Union Telegraph Co. v. Blanton ( 1887 )

Opinion by

Hurt, J.

§ 347. Certiorari; motion to dismiss must be made and also presented at the return term or it cannot be entertained. Appellees having recovered a judgment in justice’s court against appellant, the latter removed the cause to the county court by certiorari. In the county court, appellee, at the term of the certiorari, filed a motion to dismiss the proceeding, but did not present said motion to the court at said term for action. After several terms of said court had elapsed after the [filing of said motion, appellee presented the same to the court for action thereon, and the court sustained the motion and dismissed the certiorari, etc. Held error. A motiQn to dismiss a certiorari cannot be entertained unless made at the return term of the certiorari. [R. S. art. 311.] Merely filing such motion is not sufficient. It must be presented to the court, and action thereon demanded at said return term.

November 23, 1887.

Reversed and remanded.