Reports of cases argued and decided in the Supreme Court of the State of Texas during Austin term, 1854, and a part of Galveston term 1855. Volume 13. Page: 9
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AUSTIN, 1854. 17-18
C.riswell v. Richter.
"a promissory note) on one Anderson J. Ross, alias A. J. Ross, a resident,
"&c., for the sum of, &c., which said note will be to the Coul't shown on the
'trial of this suit, and is in the words, &c. (Copy of note, payable to Riclard
"L. Breeding, signed A. J. Ross.) Petitioner further states that said note
"became due and payable on the first day of January, 1853, and that the
'same [1 /] remains unpaid, although the said Ross, who is hereby made de"fendant,
has been often requested to pay the same. Wherefore petitioner
"prays, " &c. Defendant demurred, and excepted generally to the action of
"the plaintiff in the form and manner as set out in his petition," &c., and
pleaded a general denial. Demurrer overruled. Judgment for plaintiff. Appeal
by defendant.
Burns 8 McAshan and Webb 48 Harcourt, for appellant.
L. F. 48 W. B. Price, for appellee.
LIPScoMB, J. The petition in this case contains no averment that the note
sued an was the note of the defendant, nor that he had made the same. There
was a demurrer to the petition, which was overruled, and defendant appealed.
That the petition is fatally defective has been settled by the decisions of this
Court in Frazier v. Todd (4 TeK. R., 461,) and in Jennings v. Moss, (Id., 452,)
and acknowledged by the Court in Jackson v. Marshall and another (6 Tex. R.,
324.)
'he judgment is reversed and the cause remanded.
Reversed and remanded.
[18] CRISWELL V. RICHTER.
CiBTIOARI.--Mere irregularities or errors which have operated no prejudice to the right
of the party will not suffice as a ground for obtaining a certiorari. It must appear that the
petitioner had a good cause of action or ground of defense. and that wrong or injustice has
been done him in consequence of the error or irregularity complained of. (Note 4.)
Appeal from Fayette.
J. Randolph-Burns, for appellant.
WHEELER, J. It has been settled by repeated decisions of this Court that a
petition for a certiorari must disclose merits. It must appear that the petitioner
had a good cause of action or ground of defense, and that wrong or injustice
has been done him in consequence of the error or illegality complained of.
Mere irregularities or errors which have operated no prejudice to the right of
the party will not suffice as a ground for obtaining a certiorari. (Hope v. Alley,
11 Tex. R., 260.)
The petition in the present case does not disclose merits. It does not appear
by its averments that the defendant had any valid defense to the action. There
is no denial of the justice of the plaintiff's demand, or of the defendant's indebtedness
and legal liability. In fine, it does not appear by the petition, admitting
its allegations to be true, that the judgment of the Justice was not in
accordance with the very right and justice of the case, and such as should have
been rendered had not the errors complained of been committed. The petition,
therefore, was rightly adjudged sufficient, and the judgment is affirmed.
Judgment affirmed.
BOTei 4.-Ford v. Williams, G T.,.311; Clay v. Clay, 7 T., 250; Hope v. Alley, 11 '1., 259; Inge v.
Benson, 15 T., 315; Peabody v. Buentillo, 18 T., 313; Robinson v. Lakey, 19 T., 139; Huston v.
Clits, 19 T., 178; Givens v. Blocker, 23 T., 633; Clark r. Hutton, 28 T., 123; Oldham v. Sparks,
28 ,Tqf25; Cordes r. Kauffman, 2 '1'., 179.
9
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Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas during Austin term, 1854, and a part of Galveston term 1855. Volume 13., book, 1876; Houston, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28561/m1/17/: accessed May 8, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .