E. L. Givens v. R. F. Blocker, 23 Tex. 633

Roberts, J. The court below did not err in dismissing the petition for certiorari, because it did not allege that the note sued on was included in the settlement made between Givens and Gholson, the original payee; and also, because it failed to show that the receipt was proved at the trial, and that it embraced this note. Another objection to the petition is, that it did not allege that the. facts recited as proved on the trial, were all the facts proved. (Robinson v.

Lakey, 19 Texas Rep. 139.) Upon dismissing the petition, the court rendered judgment against the principal and sureties on the bond given for the certiorari, for the amount of the debt, as upon affirmance after a trial de novo. In this, there is error. The judgment should have dismissed the petition, and rendered a judgment for the costs of the District Court. This would have left the judgment of the Justice’s Court in full force, as if no certiorari had been granted. It is usual in such cases to award a certiorari proce dendo.

To render any other judgment, would be taking cognizance of the case by the District Court, which is inconsistent with the judgment of dismissal. The judgment must be reversed and rendered here, so as to correct this error. Reversed and rendered.