Texas & St. Louis R'y Co. v. R. Ballouf & Co.

1 White & W. 277

• Court: Court of Appeals of Texas
• Decided: December 15, 1880
• Docket: No. 860, Op. Book No. 2, p. 663
• Status: Published

Opinion

Opinion by

Winkler, J.

§ 551. Certiorari; sufficient cause for. The writ of certiorari will not be granted “unless the party applying for the same, or some person for him having knowledge of the facts, shall make affidavit in writing, setting forth sufficient cause to entitle him thereto. [Rev. Stats, art. 802.] What will constitute sufficient cause for the issuance of this writ is set forth in art. 303, Rev. Stats., in the following language: “ In order to constitute sufficient cause, the facts stated must show either that the justice of the peace had no jurisdiction or that injustice was done to the appellant by the final determination of the suit or proceeding, and that such injustice was not caused by his own neglect.”

§ 552. Citation; return on, not sufficient. The true name of defendant as shown by the certiorari and citation from the justice of the peace was “The Texas & St. Louis Railway Company.” The return of the officer on the citation was “ executed by delivering a true copy of the within citation to E. O. Williams, treasurer of the St. Louis & Texas R. R. Co.” Held, that the service was insufficient to warrant a judgment by default, and a petition for certiorari was properly granted on that state of facts.

December 15, 1880.

§ 553. Judgment not supported by evidence. Judgment should not have been rendered upon the drafts without proof of their acceptance; the indorsement by the auditor of the company “registered ” did not show-sufficient liability.

Reversed and remanded.