Hail v. Magale

Opinion by

Willson, J.

§ 852. Certiorari is additional to and independent of an appeal. The remedy by certiorari is independent of the one by appeal, and additional thereto. It would often defeat the remedy entirely to require that an appeal should be resorted to, or good cause shown why it was not resorted to, before a party would be allowed to avail himself of the remedy by certiorari. In one case [Cotton v. Gammon, 4 Tex. 83] it was held that the petition for certiorari should show good cause why the applicant did not appeal. But this case has been overruled by subsequent decisions, and is not now regarded as authority. [Ward v. McRimmond, 12 Tex. 314.]

§ 853. Certiorari; sufficient cause for; statute construed. Our statute provides that, “In order to constitute a sufficient cause (for certiorari), the facts stated must show either that the justice of the peace had not jurisdiction, or that injustice was done to the applicant by the final determination of the suit or proceeding, and that such injustice was not caused by his oton inexcusable neglect.” [R. S. 313.] In this case a valid defense to the plaintiff’s cause of action is fully disclosed in the petition for certiorari, and it is shown that a bona, fide effort was made by the petitioner to avail himself of the defense before the justice of the peace. Inexcusable negligence on the part of the petitioner, within the meaning of the law, is not shown by thfe petition nor the exhibits accompanying it. Whatever may have been the negligence of his attorney or attorneys, it was not his own negligence. He used ordinary and reasonable diligence to have the suit defended in the justice’s court, and it was no fault of his that it was not done. We do not think the negligence of his attorney, if any, could justly or legally be imputed to him, so as to defeat him of his remedy by certiorari. It is well settled that a party cannot have a certiorari on account of any matter of which he might have availed himself before the justice, but which without any apparent excuse he neglected to urge. [Ford v. Williams, 6 Tex. 311; O’Brien v. Dunn, 5 Tex. 570; Clay v. Clay, 7 Tex. 250; Perdew v. Steadham, 8 Tex. 277; Pearl v. Puckett, id. 303; Hope v. Alley, 11 Tex. 260; Inge v. Benson, 15 Tex. 316; Haley v. Villeneuve, 11 Tex. 617; Peabody v. Buentillo, 18 Tex. 313.] It is, however, also well settled that when it appears by the allegations of the petition that the petitioner has merits, and there is reason to apprehend that injustice Iras been done him without airy fault of his own, he is entitled to the remedy. [Hooks v. Lewis, 16 Tex. 551; Ahrens v. Giesecke, 9 Tex. 432.]

§ 854:. Amendment; official seal may be affixed by, to jurat, to petition for certiorari; defect can be reached only by special exception. The petition for certiorari was sworn to before the proper officer, but the officer omitted to affix his official seal to the jurat. Held, if this be a defect sufficient to dismiss the petition, it should have been specifically pointed out in the motion to dismiss, which was not done. If it had been so pointed out it might have been amended by fixing the impress of the official seal of the officer to the jurat. But the objection made was, that the petition was not sworn to, not that there was an omission to properly authenticate the oath. This objection was not calculated to call the attention of the appellant to the omission of the seal, but to mislead him from a discovery of that defect.

§ 855. Bond for certiorari; misdescription of judgment in. The bond for certiorari in this case recites correctly the names of the parties to the suit, the number of the suit, the court in which the judgment was rendered, the date of its rendition, and, with perhaps a very slight inaccuracy, the amount of the judgment. There is sufficient in the bond to identify the judgment beyond any mistake; and a small discrepancy in the amount of the judgment as actually rendered, and as recited in the bond, would not vitiate the bond, where, as in this case, the judgment is otherwise fully and correctly described. In the court below the petition for certiorari was dismissed on motion of appellee.

February 14, 1883.

Reversed and remanded.