Hill v. Faison

27 Tex. 428

• Court: Texas Supreme Court
• Decided: July 1, 1864
• Status: Published

Opinion

Bell, J.

It is assigned as error that the court below sustained the motion to dismiss the certiorari, and also proceeded to dismiss the whole case. The petition for certiorari not only sought to annul the judgment rendered by the justice of the peace, but also embraced a claim for damages resulting from the sale of the land. This was improper. The office of a writ of certiorari is simply to bring up to the District Court, from the justice’s court, the case tried by the justice, that it may be tried de novo by the District Court. It is not proper to connect the suit before the justice with any other cause of action, not within his jurisdiction; and where, the petition for certiorari seeks to do this, as in the present case, the proper practice would be for the District Court to dismiss the suit so far as the new cause of action, not within the jurisdiction of the justice, is set up, and to proceed to hear and determine the case properly brought before it by the certiorari. If the petition for certiorari be insufficient, and for that reason be dismissed upon motion, then perhaps the whole case presented by the petition, embracing the new cause of action not within the jurisdiction of the justice’s court, might, upon a proper motion having that object in view, be continued on the docket as an original suit.

In the present case, we are of opinion that the court below erred in sustaining the motion to dismiss the certiorari. The petition for certiorari alleges that the citation issued by the justice of the peace on the 9th day of November, was published in the “ True Issue,” a weekly newspaper, on the 18th of the month, on the 20th, and on the 27th, and no more, and that the judgment was rendered on the 4th day of the succeeding month. In cases like the present the statute requires the citation to be published at least three successive weeks before the return day. (Oldham & White’s Digest, art. 1108.) We think this provision of the statute is not complied with by a publication in three successive issues of a weekly newspaper, unless the full term of three weeks, or twenty-one days, elapses between the day when the citation is first published and the day on which the judgment is rendered, exclusive of the first day of publication and also of the return day of the writ. Statutes regulating the general subject of notice, are always to be construed as respects the computation of time, most libeially in, favor of the party who is to be affected by the notice which the statute provides.

In this case, the citation having been published on the 13th, the 20th and the 27tli days of the month of November, if the fifth day of the succeeding month had been the return day of the writ, and a day on which the court might lawfully have rendered judgment, we think the service would have been complete and that the judgment might properly have been rendered on the fifth day of December, because the third week of the publication would have expired with the fourth day of the month.

This court has said, in the case of Perry v. Rohde, 20th Tex., 729, that the rendition of judgment by a justice of the peace upon-insufficient service, is good ground for a certiorari, and we think this is true. It follows, the service in the case before us being insufficient, that the district court erred in dismising the certiorari. This would suffice for the present disposition of the case, but we think it proper to say that- we are of opinion that the District Court of Fayette county had no jurisdiction to make the order allowing a fee to Wm. Price, the guardian ad litem of the minor Wallace Hill, in the suit named in the petition for certiorari. The allowance of compensation for the service rendered ought to have been made at the term when the services were rendered, or, doubtless, a judgment or order making the allowance might have been entered nunc pro tunc, at a subsequent term, upon motion and proper notice to the party interested. The judgment of the court below is reversed and the cause remanded.

Reversed and remanded.