Miner v. Gose

1 White & W. 32

Opinion

Opinion by

Clark, J.

§73. Certiorari; requisites of petition for. An appeal from a judgment of a justice of the peace being the regular method prescribed by statute for effecting a revision of errors in that tribunal, the petition for certiorari must allege a sufficient excuse for not appealing. [Mayo v. Lewis, 4 Tex. 1; Cotton v. Gammon, 4 Tex. 84; Bodman v. Harris, 20 Tex. 31.] That petitioner’s adversary had made a motion for new trial in justice’s court, and afterwards abandoned it, thereby deceiving petitioner, will not be a sufficient excuse for not appealing. A petition for certiorari should also set out the substance of the evidence adduced upon the trial before the justice, in order that the court, in granting the writ, may be enabled intelligently to determine the merit of the application. This has generally been deemed essential in our practice. [Clark v. Hutton, 28 Tex. 123; Givens v. Blocker, 23 Tex. 633; Robinson v. Lakey, 19 Tex. 140.]

June 9, 1880.

Reversed and remanded.