Holt v. McCasky

Hemphill, Ch. J. This case was brought from a Justice’s Court into the District Court by a writ of certiorari. At the first Term, it was continued by the plaintiff. At the second, it was dismissed on motion of the defendant; and this judgment has, by writ of error, been brought up to this Court. The principal ground assigned for reversal is, that the motion to dismiss, not being filed at the return Term of the certiorari, came too late, and for that reason should have been overruled. And there is no doubt, under the decisions of this Court, that this is a valid ground of objection to the judgment. We have uniformly held, from the case of O’Brien v. Dunn, (5 Tex. R. 570,) that a motion to dismiss a certiorari must be made at the return Term. (10 Tex. R. 268, 285, 318.) The judgment is erroneous, and the same is hereby reversed, and the cause ordered to be remanded. Reversed and remanded.