
    J. E. Criswell v. J. H. Bledsoe.
    A motion to dismiss a certiorari, awarded after the judgment has been stayed, and more than ninety days after its rendition, should be sustained.
    Where the petition for injunction showed that the judgment in the Justice’s Court for S72 50, sought to be enjoined, was just to the extent of $12 50, and the injunction was granted as to the residue of the judgment, including the costs: Held, to be erroneous.
    Appeal from Lavaca. Tried below before tbe Hon. Eielding Jones.
    Tbis action bad its foundation in a suit before a justice of tbe peace, in favor of tbe appellant, Criswell, against tbe appellee, in wbicb appellant recovered judgment for $72 50. Tbe appellee stayed tbe judgment, and after tbe expiration of more than ninety days from tbe rendition of it, execution issued, and tbe appellee paid on it $12 50, and obtained an injunction for tbe residue, including costs, with a writ of certiorari removing tbe cause into tbe District Court. The appellee, in bis petition for an injunction, admitted that $12 50, part of tbe consideration of tbe note on wbicb tbe judgment bad been rendered, was just, and bad been paid on tbe execution.
    Tbe defendant in tbe court below answered, under oath, tbe equity of tbe bill, and moved tbe court to dismiss tbe certiorari, and dissolve tbe injunction.
    Tbe court overruled tbe motion, and on a trial of tbe cause, on its merits, rendered a judgment against tbe appellant for costs.
    
      R. M. Tevis, for appellant.
   Roberts, J.

If tbis proceeding be regarded as a certiorari, tbe petition should have been dismissed on tbe motion of Criswell, the judgment having been stayed, and also ninety days having elapsed after the rendition of tbe judgment, and before tbe granting of tbe writ.

As an original proceeding by injunction, it cannot be entirely sustained. A part of tbe judgment, to wit, twelve dollars and a half, was acknowledged to be just, and was paid by Bledsoe after the execution issued, which was enjoined. This was sufficient to carry the cost of the Justice’s Court.against Bledsoe, and ho should have paid that also. As the decree of the District Court enjoins the collection of the entire judgment, it must be reversed. As the evidence leaves the matter in some doubt as to the rights of the parties, and as a new trial may enable them to exercise more diligence in exhibiting the true state of the case, we will reverse and remand the cause, rather than undertake to reform the judgment, upon the uncertain basis which is furnished us.

Reversed and remanded.  