Clark v. Hutton

Citations

• 28 Tex. 123

Syllabus

<p>The writ of certiorari is not granted as a matter of right. The application for it is addressed to the discretionary powers of the court, and should show that the applicant has rights or a valid defense of which he has been deprived by the erroneous action of the inferior tribunal, or that, without fault or want of diligence on his part, he has been unable to present his rights or his defense.</p> <p>The errors complained of in a petition for a certiorari must not be mere irregularities, and all the facts proven at the trial must be so stated that the court can determine for itself whether there are merits in the application. (Paschal’s Dig., Art. 468, Note 331.)</p> <p>Although the title to land cannot, as a general rule, be involved in actions of forcible entry and detainer, yet an applicant for a writ of certiorari in such cases should set forth his title or rights, whether proved or not, in order to show that there are merits in his claim or defense, and that there is good reason to apprehend that injustice has been done him. (Paschal’s Dig., Art. 3869, Note 898.)</p> <p>It appearing by a petition for a certiorari, filed by a defendant in an action of forcible entry and detainer, that the land in question had been patented to the plaintiff but a short time before the institution of the suit, and it further appearing that the defendant did not prove, nor in his petition even assert, any right of possession to the premises, the petition fails to show sufficient merits in the claim of the applicant, or that injustice had been done him by the judgment of the justice’s court against him, and consequently the district court did not err in quashing the writ of certiorari and dismissing the cause.</p> <p>Where the district court, to which the defendant had brought up by certiorari an action of forcible entry and detainer, dismissed the cause for want of merits or. equity in the petition, it was proper to award a writ otpocedendo to the justice’s court.</p>