Murphy v. Wentworth

36 Tex. 147

• Court: Texas Supreme Court
• Decided: July 1, 1872
• Status: Published

Opinion

Walker, J.

The only error in this case necessary to be noticed is in the return of the alternative writ of mandamus. The writ, if sued out in vacation, should be made returnable to the next term of the District Court for the county wherein the respondent resides. It was therefore error to make the writ returnable at chambers; and it was error to hear and determine the case at chambers and grant the peremptory writ. The appellant is in error, contending that a rule should have first issued on the respondent, ordering him to appear and show cause why the alternative writ should not issue. The alternative writ is itself in the nature of a rule to show cause why the peremptory writ should not issue.

The judgment is reversed, and the cause dismissed without prejudice.

Eeversed and dismissed.