Hooks v. Lewis

Wheeleb, J. The averments of the petition are not as full and certain, as respects the facts and merits of the case, as they might have been. But we think them sufficient to entitle the petitioner to a certiorari. It appears by the petition that the complainant has merits ; and that the Justice erred, to the prejudice of his right, in rejecting the record of the former judgment, and the deed of release, under which, it seems, he claimed to be rightfully possessed of the premises in dispute. If the averments of the petition be true, there is cause to believe that injustice was done the party by the rulings complained of. And we have heretofore held that, where it appears by the allegations of the party complaining of the judgment of the Justice of the Peace, that he has merits, and there is reason to apprehend that injustice has been done him, without any fault of his own, he will be entitled to a certiorari to remove the case to the District Court for a new trial on the merits. (King v. Longcope, 7 Tex. R. 239.) It is objected to the sufficiency of the petition, as respects the plea of the former judgment, that it is not averred that it was a judgment on the merits. This objection, however, was not taken in the motion to dismiss ; the judgment is spoken of in the petition as a judgment of acquittal; and it would, perhaps, be applying greater strictness than ought to be applied in this proceeding, to hold the want of a former, express averment to that effect, fatal to the petition in this particular, when first made in this Court. But if this averment, as to a former judgment, were rejected, still we think the petition contains enough to entitle the complainant to a hearing in the District Court upon the merits of his case. The bond, though not conditioned in the very words of the statute, contains substantially the condition which the law prescribes ; and is therefore a substantial compliance with the statute. (Hart. Dig. Art. 1753, 1740.) We are of opinion that the Court erred in dismissing the [554] petition ; and that the judgment be reversed and the cause remanded. Reversed and remanded.