George Seeligson & Co. v. Wilson

Watts, J. Com. App.

In acting upon a motion to quash or dismiss a certiorari, the district court will always look to the petition for the writ, and to the transcript from the justice’s court, in order to determine the merits of the motion. Darby v. Davidson, 27 Tex., 432; Jones v. Nold, 22,Tex., 379.

For a description of the judgment the bond refers to the petition for the certiorari, and upon reference to the petition the judgment of the justice of the peace is found to be therein fully described. By the fiat, the writ was awarded upon the condition that the bond should be given -in the amount named by the judge, conditioned as the law requires. This was done; and besides referring to the petition for a description of the judgment, the bond gives the style of the cause, the date of the judgment, and designates the court in which it was rendered. The description of the judgment fully and clearly identifies it as the same found in the transcript from the justice’s court.

[Opinion approved January 22, 1883.]

In our opinion, the bond is sufficient in that particular, and that the court erred in holding the contrary.

Seeligson’s affidavit to the petition for the writ of certiorari is, “ that all the material allegations of the above and foregoing petition are true so far as stated upon my own knowledge, and so far as stated upon the information of others are believed to be true.” There is no specific objection to this affidavit pointed out by the motion to dismiss.

In Rollison v. Hope, 18 Tex., 446, the affidavit, was almost identical in language with that before us, and in passing upon its sufficiency Justice Wheeler said: “The affidavit is not in the most approved form. But a substantial compliance with the law is all that is required; and the law does not prescribe the terms of the affidavit, but only that the party applying shall make affidavit in writing setting forth sufficient cause to entitle him to the writ. The practice has been to construe these proceedings liberally, and not to require the same strictness which is required in the proceedings in the ordinary suits in the district court. We think the affidavit ought to be deemed sufficient in substance, especially as the motion did not point out specifically the objection now urged.”

So, also, in this case, we are of the opinion that the affidavit was sufficient and that the court erred in this particular.

We conclude, and so report, that the judgment ought to be reversed and the cause remanded.

Reversed and remanded..