Miller v. Holtz

Bell, J. The appellee, Anthony Holtz, sued the appellant in the court of a justice of the peace, and obtained a judgment. Miller, the present appellant, obtained a writ of certiorari, and removed the cause to the District Court. In the District Court, Miller obtained a rule for security for costs against Holtz, and at the next term of the court after the rule was made, Holtz having failed to give the security, the cause was dismissed from the docket, upon motion of Miller. After the cause was dismissed from the District Court, the magistrate, or, to be more particular, the successor in office of the magistrate who rendered the original judgment in favor of Holtz against Miller, issued an execution against Miller for the amount of the judgment. Miller then obtained an injunction from the district judge, enjoining all proceedings by the sheriff, the magistrate and Holtz, upon the magistrate’s judgment, and the execution issued by virtue of it. Holtz then made his motion in the District Court to dissolve the injunction which Miller had obtained, and the district judge dissolved the injunction. The case now before us is an appeal from the decree of the District Court, dissolving the injunction. The writ of certiorari removed the case from the magistrate’s court to the District Court, and the magistrate’s court could [140] take no further step in the matter, except upon the order of the District Court. The writ of certiorari, to remove a cause from the court of a justice of the peace to the District Court, is not a writ of right. It depends upon the discretion of the judge to whom the application for the writ is made, whether it will be granted or not. But inasmuch as the grant of the writ is upon an application ex parte, the law permits the party who is affected by the grant of the writ to move, at a proper time, that the writ be quashed or dismissed. If, upon motion, the writ of certiorari be quashed, this is equivalent to a judgment that the writ ought never to have been granted. The petition for certiorari, or the writ of certiorari, is then stripped of its efficacy. The judgment of the District Court is, in effect, that it will not review the judgment of the justice’s court. The quashal or dismissal of the writ, then revives the judgment of the justice’s court, and the District Court either certifies its action in the premises to the justice’s court, or awards a formal procedendo, commanding the justice of the peace to execute his judgment. But it is only in the single case of the quashal of the writ of certiorari by the District Court, for want of merits in the petition for the writ, or because there is no sufficient bond, that the judgment of the justice’s court is revived. The writ takes the case from the jurisdiction of the justice’s court, and it becomes a suit in the District Court, to be tried de novo, just as if it had been originally instituted in the District Court, subject, of course, to such rules and limitations as the law has prescribed for the trial of such causes. When the cause is removed to the District Court, the plaintiff in the justice’s court is the plaintiff in the District Court, and he is under the same obligation to prepare, for trial, and to prosecute his cause, as every party is, who sues originally in the District Court. If he fails to prosecute his suit, it may be dismissed, upon the motion of his adversary; but the dismissal of it for want of prosecution, would not revive a judgment which had been rendered in his favor in the justice’s court. In such case, the dismissal does not operate upon the writ of certiorari. There is no judgment that the writ of cer [141] tiorari was improvidently granted. The writ still retains its force, and the plaintiff’s suit is dismissed, because he has failed to comply with the requirements of the law, in its diligent prosecution. It is not necessary for us now to decide, whether or not it was error in the District Court to require the plaintiff to give security for the costs. In the case of Foreman v. Gregory, 17 Texas Rep. 193, it was held, that where a defendant in the justice’s court, removes a case to the District Court by certiorari, the plaintiff cannot be required in the District Court to give security for the costs on the motion of the defendant. Whether it was proper in this case, for the District Court to make the rule against the plaintiff or not, the dismissal of the cause for failure on the part of the plaintiff to comply with the rule, was not such a dismissal as revived the judgment of the justice’s court, or authorized the issuance of execution on that judgment. It was not a dismissal, or quashal of the writ of certiorari. It was a dismissal of the litigation of the suit, because an order of the court was not complied with. If the plaintiff was not subject to the rule for costs in the District Court, then the dismissal of the cause by that court, for want of a compliance with the rule, was a judgment from which the plaintiff ought to have appealed. From these views it follows, that the justice of the peace had no authority to issue the execution against Miller; that the injunction to restrain the proceedings of the justice and sheriff upon that judgment and execution, was properly granted, and ought to have been perpetuated. The judgment of the court below is reversed, and the cause remanded, with instructions to the court below to proceed in conformity with this opinion. •