Peter Wallerath et ux. v. Ernst Kapp, 31 Tex. 359

Latimer, J. —The appellee instituted suit in the county court against thé appellants and recovered judgment, from which judgment the appellants, by counsel, gave notice of appeal. The appeal was not perfected, and between five and six months after the judgment was rendered the appellants appealed to Judge Stripling- for the writ of certiorari, to remove the case to the district court.

The judge granted the writ, but, when the cause came on to be heard in the district court, he dismissed the case upon motion, giving as-Ms reasons for doing so that the parties who applied for the writ had shown no sufficient excuse for not prefecting their appeal.

The only reason given in the petition for the certiorari why the appeal was not perfected is, that “ petitioner lived too far in the country, and could not be notified in time, of the result of the trial.” The act of October, 1866, organizing the county courts and defining the powers and jurisdiction thereof, regulates appeals from the county courts to the district courts, and requires that the appeal bond shall be executed witMn ten days from the adjournment of the court.

The constitution of 1866 clothes the district courts with the power to issue the writ of certiorari and all other writs necessary to give them a general superintendence and control over inferior tribunals; and, wMle it may be true that a party aggrieved by the judgment of the county court might invoke the jurisdiction of the district court by means of the writ of certiorari, still it is certain that the legislature intended that an appeal to the district court would be the usual method by which the judgment of the county court would be revised.

The writ of certiorari is not strictly a writ of right, in the sense that a party has an absolute right to have it issued for his benefit. It rests within the sound discretion of the judge to grant it or not; and, inasmuch as he usually grants it upon an ex parte showing, he réserves the right to dismiss it, if the application for it appears, upon more mature consideration, to be wanting in merits. In this case we think the judge below did not err in dismissing the petition for the certiorari, for the reason given by him.

It was the duty of the defendants below to have perfected their appeal, or to show some good reason why they did not, which would have equitably entitled them to the writ of certiorari. This they failed to do. The act of October, 1866, also limits the right of appeal from the district court to this court, in cases taken up by appeal from the county court, to causes in which the amount in controversy is $200 or upwards.

The matter in controversy here is less than $200, and we are of opinion that, although this cause was not taken up from the county court by appeal, the spirit of the act of 1866 requires us to decline to entertain it for want of jurisdiction. The case is therefore Dismissed.