Gould v. Sanders , 60 Tex. Civ. App. 410 ( 1910 )

This suit was brought in the Justice Court by the appellant upon a judgment alleged to have been rendered by a justice or the peace in the State of Michigan in favor of the former against the latter for the sum of $175 and the further sum of $1.75 costs. Upon the trial in the Justice Court judgment was rendered in favor of the plaintiff, from which judgment the defendant, Sanders, sued out a writ of certiorari and brought up the record of the proceedings and the original papers in the case to the County Court within the time required by law.

In his petition for the writ of certiorari the defendant, Sanders, alleged that the suit was brought against him upon a judgment for $175 and $1.75 costs purporting to have been rendered by the Justice Court in Wayne County, Michigan, which was not a court of record; and that upon the trial of this case the justice of the peace who rendered the judgment against him on the alleged foreign judgment, admitted said judgment in evidence without proof of its rendition or of the existence of the court by which it is purported to have been rendered; that the judgment was not proved, but was attempted to be shown by a certified copy of the record thereof; that the affidavit upon which the certificates were made to prove up the judgment were not under seal; and that the certified copies offered to prove the existence of the judgment were from a court other than the court in which it is claimed the judgment sued on was rendered; that there was no evidence produced on the trial showing the jurisdiction of the Justice Court of the State of Michigan over the subject matter, and no evidence to show jurisdiction of said court over the person of the defendant. That there was no other evidence introduced upon the trial than that referred to; and that upon such evidence the judgment from which the writ of certiorari is asked, was rendered against defendant, which he alleged was erroneous, unjust and contrary to equity and fair dealing.

The plaintiff made a motion to dismiss the writ of certiorari, which was overruled. The ruling is assigned as error. The ruling involves the question, whether the allegations recited were sufficient to authorize the issuance of the writ.

Upon a motion to quash the petition for certiorari and dismiss the cause, the allegations in the petition must be taken as true for the purposes of the motion. Von Koehring v. Schneider, 24 Texas Civ. App. 469[24 Tex. Civ. App. 469].

It is not necessary in every case to set out the entire testimony on the trial in the Justice Court in order to obtain a writ of certiorari. But the petition must either state all the evidence, or show that a material and vital error occurred in the proceedings, or that the applicant has not been able to avail himself of a legitimate prosecution or defense by no fault or neglect of his own. One or all of these causes must be set forth, not by a general allegation of the wrong, but with sufficient detail to show a prima facie case entitling the petitioner to another hearing. Nelson v. Hart, 23 S.W. 832; Von Koehring v. Schneider, supra.

There were no allegations in the application that the defendant did not owe and was not justly due the plaintiff the debt sued on, which purports to be evidenced by said foreign judgment; nor that there was no such court as the one by which it purports to have been rendered; nor that such court did not have jurisdiction of the defendant's person and of the subject matter. Neither is there any allegation that when the evidence set out in the application was offered on the trial in the Justice Court, its introduction was objected to by the defendant. The judgment in that court recites that he appeared at the trial, which is not gainsaid by any allegation in his petition for the certiorari. It was then he should have objected to the introduction of the evidence if he deemed it inadmissible. If no objection was made to its introduction, it can not be said that its admission was erroneous and that it does not support the judgment. One is not entitled to a writ of certiorari to carry a case from a Justice Court to the County Court because the judgment of the justice was rendered on evidence which if objected to might have been excluded, when no objection was made on the trial by the party applying for the writ.

The County Court should have dismissed the certiorari on plaintiff's motion, for want of sufficient cause appearing in defendant's affidavit therefor, and have directed the justice of the peace to proceed with the execution of the judgment rendered by him.

Wherefore the judgment of the County Court is reversed, with instructions to enter an order dismissing the certiorari and to direct the justice of the peace to proceed with the execution of his judgment.

Reversed with instructions.