Reese v. Hamilton

20 Tex. 668

• Court: Texas Supreme Court
• Decided: July 1, 1858
• Status: Published

Opinion

Wheeler, J.

The statute is express and positive, that no writ of certiorari shall be issued unless the party applying shall first give bond, &c. (Hart. Dig. Art. 1753.) The law makes no exception, and none has been recognized in practice. The provision of Art. 804, of the Digest, is made expressly to apply to costs and appeals, and does not include a proceeding by certiorari; which is not, like an appeal, a matter of right, and of course there is no more authority of law for awarding a certiorari, in favor of an executor or administrator, without requiring the party to give bond, than for awarding any extraordinary writ—a sequestration or attachment—in favor of such party, without the bond required by the statute. The Court would not be warranted in making the case of an executor or administrator an exception, by judicial construction, to the peremptory mandate of the statute. The fiat of the judge very properly made the giving of the bond a condition precedent to the issuing of the writ; and the party having failed to give the bond as required, there was no error in dismissing the petition. The judgment is affirmed.

Judgment affirmed.