Huston v. Clute

Roberts, J. The error complained of in this case, is in admitting the notes to be given in evidence, when the citation, .issued by the Justice, described them as having been dated on the 15th, when they bore date on the 10th of the same month. This is not a ground of error complained of in the petition for certiorari, nor would it have been available to appellant, as a ground, had it been stated, unless he had made the objection before the Justice of the Peace, or shown a good reason why it was not made. (Hope v. Alley, 11 Tex. R. 259.) Ap 179 pellant appeared before the Justice, and moved for a continuance, in which he failed, and suffered a judgment to be rendered against him on the notes, without any objection to the evidence on the trial. Had he then made the objection, the irregularity in the proceedings of the Justice, in issuing his process, would have been brought to his notice, and he could then have passed upon it. Having failed to make the objection then, and the notes being fully identified by other parts of the citation, and not having made this a ground of complaint in the petition for certiorari, the appellant must be taken to have waived it. At most, it is an irregularity on the part of the Justice, which this Court would not now review, unless it involved the merits of the case, and in some way injuriously affected the rights of the party. (Criswell v. Richter, 13 Tex. R. 18 ; Kellers v. Reppien, 9 Id. 443.) That cannot be the case here, for the citation fully describes the notes in every particular, except the date, and that variance is not such as to prevent the description there given from reasonably identifying the notes. Judgment affirmed.