Pearl v. Puckett

8 Tex. 303

• Court: Texas Supreme Court
• Decided: July 1, 1852
• Status: Published

Opinion

Hemphill, Cu. J.

The plaintiff in error brought suit against the defendant in error, before a justice of the peace, and recovered judgment. The cause was removed by certiorari to the District Court, and judgment was there given for defendant. By writ of error it is brought to this court; and as causes for reversal it is assigned that there was error—

1st. In overruling the motion to dismiss the suit and grant the writ of certiorari.

2d. In overruling plaintiff’s motion in arrest of judgment.

3d. In overriding plaintiff's motion for a new trial.

The petition for the writ in this case (as to the insufficiency of its allegations) is not distinguishable from that in the case of Perdew v. Steadham. It does not show that there was any error committed by the justice of the peace, or that but for some uncontrollable accident the petition had not made a defense going to the merits which he could otherwise have made.

It would be fruitless to enter into a minute examination of the various matters alleged in order to show that neither singly nor in the aggregate do they form any sufficient ground for the grant of the writ.

The alleged want of jurisdiction in the magistrate, as acting in a different beat from that in which petitioner had Ills domicile, is insufficient. He may not have sustained his motion to dismiss by proof, or there may have been no justice of the peace in the beat in which the petitioner resided, or it may have been proven that the petitioner had no lixed place of residence. His averments should have shown conclusively that the justice had no jurisdiction; that this had been either set up as a defense and proven, or that by collusion between the plaintiff and the magistrate or willful injustice on the part of the officer, he had assumed and exercised a jurisdiction over one whose residence, to the knowledge of the justice, was beyond his precinct.

The other allegations are altogether insufficient, and it is ordered, adjudged, and decreed that the judgment be reversed, the cause dismissed from the District Court, and that the District Court do order a procedendo to issue to the court below.

Reversed and. dismissed.