
    Steinlein v. Dial.
    A motion for a new trial on the ground of evidence to be produced at another trial must be accompanied by the affidavits of the witnesses by whom it is expected to make the proof, or the absence of their affidavits must be accounted for.
    A new trial will not be granted in order to allow the introduction of cumulative evidence.
    A motion to dismiss a certiorari for insufficiency in the petition must be made at the return ■ term. There is no similitude in this particular between a petition for a certiorari and an original petition in the District Court. (Note 47.)
    Error from Harrison. This suit was instituted before a justice of tho peace. The plaintiff bad judgment, and the defendant removed the case by certiorari to the District Court. After one mistrial and continuance there was a trial in the District Court, which resulted in a verdict for the original defendant, (plaintiff in tiie certiorari.) The plaintiff applied for a new trial on the ground, among others, that lie was surprised by the testimony of a witness who, lie stated, bad testified differently upon a former trial of the ease. He averred that, had he not been taken by surprise by the testimony, he could have rebutted id and disproved the statements of the witness. The application was supported by the affidavit of the party, but not by that of any witness. lie subsequently filed what he denominated an amended motion for a new trial, in which be asked the court to set aside the verdict and dismiss the case for the want of sufficiency in the petition for a certiorari. The court overruled the motion and gave judgment upon the verdict, and the defendant brought a writ of error.
    
      L. S. Wigfall, for plaintiff in error.
    
      M. J. Hall and J. C. & Jo. Everett, for defendant in error.
   Wheeler, J.

The application for a new trial was manifestly insufficient. It ought, to have been accompanied by the affidavits of the witnesses by whom the party proposed to prove the facts alleged as the ground of his application. (Cotton v. The State, 4 Tex. R., 260.) It is evident, moreover, from the statement of facts, that the new trial was asked to obtain merely cumulative evidence.

The ground mainlv relied on for a reversal of the judgment, and the only one which requires particular notice, is the overruling of the motion to set aside the verdict and dismiss the case for the want of sufficiency in the petition for a certiorari.

In the case, of O’Brien v. Dunn, it was said that the motion to dismiss ought to I»e made- at the return term of the certiorari. (5 Tex. R., 570.) We entertain no doubt of the correctness of the rule of practice there stated.

But it is insisted that the judgment ought to be arrested for the want of sufficiency in the petition, and we refer to our opinion imtlie case of Orton v. Engledow. (9 Tex. R.) That, however, was not the cake of a petition tor certio-rari. The suit was brought originally in the District] Court. The petition in that ease must contain the cause of action and mint furnish the basis of the adjudication. And if no valid cause of action be set) forth, no judgment for the plaint iff can be rendered upon it. But the office of the petition for a certio-rari is not to set out the cause of action, but to remove the ease to the District Court for a new trial upon the cause of action sued on before the justice. Its averments are not in question on the trial of the case in the District Court; nor arc. they the basis of the judgment there rendered. If a good cause of action is uo't presented in the suit instituted before the justice, the judgment for that cause may be arrested, even after verdict in the District Court, but not for want of sufficiency in the petition for certiorari.

We are of opinion that there is no error in the judgment, and that it be affirmed.

Judgment affirmed.

Note 47. — Ables v. Pearle, post 285; Jordan v. Slaughter, post 318; Holt v. MeCarky, 14 T., 229; Gabel v. Houston, 29 T., 335.  