Duncan v. Bullock

18 Tex. 541

• Court: Texas Supreme Court
• Decided: July 1, 1857
• Status: Published

Opinion

Wheeler, J.

The defendant Bullock was a proper party to the suit, inasmuch as it was proposed to enjoin a judgment rendered in his favor. Although process of citation was not prayed against him, he was cited and appeared ; and the only question is whether the petition was rightly dismissed on his motion. We think not. The exceptions to the petition suppose it to have been designed to remove the case into the District Court for a new trial. But that was not its object; and neither the Statute prescribing a limit to proceeding by certiorari, nor the practice relative to that proceeding are applicable. The certiorari was only to bring before the Court the record of the judgments which it was proposed to set off one against the other. The proceeding was to compel the defendant Cooke to admit the set-off. If it was true that the judgment had been assigned to him, it was the right of the plaintiff to have his judgment set-off against it.

The fact of the assignment of the judgment is not as clearly and distinctly stated as it might have been, but the exceptions did not question the sufficiency of the averment. Nor was the fact of the assignment denied. It must therefore be taken to be true. The petition might have been objected to on the ground that it did not pray process of citation against Cooke. But it was not too late to amend in that particular.

If the petition be true, the plaintiff has merits. The exceptions were not tenable ; and we are of opinion that the Court erred in dismissing the case. The judgment is reversed and the cause remanded.

Reversed and remanded.