
    Clay and others v. Clay.
    Where the plaintiffs excepted to the legal sufficiency of the defendant’s petition for a certify rari, and the record recited that, on heaving the case on the petition, answer, and record of the proceedings before the justice, it was considered by the court that the judgment of the justice should be reversed, &c.: Held, That the judgment necessarily involved the overruling of the exceptions, and that they could not, as in cases where the final trial is on other issues, be considered as waived.
    The act of 1848, to regulate proceedings in case of forcible entry and detainer, does not expressly require that the complaint shall be in writing; that, however, was probably the intention in requiring that the justice shall issue his summons ‘-on complaint, upon oath, of the party aggrieved,” &e. But Where the complaint was set out in writing in the summons, accompanied by the affidavit of the party, and no objection was taken before the justice, it was held that the objection could not be taken on the return to a certiorari in the District Court.
    Great liberality and indulgence are extended to the proceedings of justices of the peace, who are supposed not to be skilled in the forms of judicial proceedings observed in courts of record. If their proceedings are intelligible, and attain substantially the ends of justice, they aro generally sustained. (Note 42.)
    Where, in a case of iorcible entry and detainer before a justice, the jury returned a verdict for the plaintiff, opposite to which, on his docket, the justice made an entry of “judgment rendered 17th April, 1S49,” it was held that there was a sufficient entry of judgment.
    The petition lor a certiorari, under the 67th section of the act oflS4S to oiganize Justices’ Courts, &c., (Hart. Dig., art. 1753.) must show on its face the error or illegality complained of by the petitioner; or that, by reason of some accident which he could not control, he had not made his defense before the justice. It must be shown that there was an attempt to make the grounds relied on for the certiorari available on the trial; cr tx:o reasons why they were not presented must be alleged. (Note 43.)
    Aj)peal from Washington. This was an action of forcible entry and de-tainer, brought by the appellants against the appellee, before McKnight, a justice of the peace, under the act of 184S. (Iiart. Dig., p. 449; see, also, p. 547.) The record contained the original summons, which recited that the. defendant, in February, 1846, did forcibly enter, and now forcibly detained from the plaintiff, a certain quarter of a league of land, (which he described,) which was in the peaceable possession of the plaintiffs; that the plaintiffs leased the premises to one Haynes, for a term ending January 1, 1S47; that the defendant, holding under’ said Haynes, unlawfully held over after the expiration of the term, &e. To this summons there was an affidavit of the truth of the facts set forth. The defendant appeared, and moved the justice to nonsuit the plaintiff, on the ground of a want of jurisdiction. This motion was overruled, and the trial postponed, at the instance of the defendant. Afterwards, on the 17th day of April, 1849, the case was tried; a jury was impaneled, who, after hearing the evidence, returned a verdict for the plaintiffs, which was recorded by the justice; and an appeal was taken by the defendant, which was also entered by the justice. The justice entered upon his docket, opposite the verdict, the words, “judgment rendered 17th April, 1849.” The appeal was dismissed in the District Court. More than a year having elapsed from the rendition of judgment before Justice McKnight, scire facias was issued by Justice McDowell, successor in office of Justice McKnight, to revive the judgment rendered by the latter; and a judgment was rendered, reviving the judgment, and awarding a writ'of possession, &c. The judgment and proceedings were afterwards removed bjr certiorari into the District Court, on the petition of the defendant.
    The petition for a certiorari stated the proceedings before Justices McKnight and McDowell; alleged that the ease was not within the jurisdiction of a justice of the peace, and tliat Justice McKnight gave no judgment in the case; that the land belonged to the petitioner, by purchase made more than twenty years before; that lie paid a full, fair, and valuable consideration for it, and that b}’’ himself, and those claiming under him, he has possessed the land and premises more than seventeen years, lias made large improvements, and will suffer irreparable injury if lie should be dispossessed.
    The plaintiffs excepted to the legal sufficiency of the petition for certiorari. On hearing the case, on the petition, answer, and record of the proceedings before the justices, the court reversed the judgment of Justice McDowell, and dismissed the ease, and the plaintiffs appealed.
    J. J3. Shepard, for appellants.
    The judgment of the District Court in this case was based upon the ground that there was no judgment rendered by Justice McKnight which could be revived. The verdict of the jury and the entry of “judgment rendered 17th April, 1849,” is more formal than is often met with in courts of superior jurisdiction. It is, moreover, the manner of entering judgment universally used in Justices’ Courts. (4 La. Coud. R., 452; McNeil v. Scoffield, 3 Johns. R.; 2 Id., 181; Baker v. Baker, Tidcl. Prac., 965, 992; 4 B. Mon. R., 17.) The judgment -sustained by the Supreme Court oí tlie United States in Grignon’s Lessee v. Astor, (2 How. K., 319,) was much more defective than the judgment in this case.
    Oiddings, for appellee.
    I. The appellants assign two causes of error:
    1st. That the court erred in reversing the judgment by McDowell, justice.
    2d. The District Court erred in deckling that McICnight liad not rendered a judgment that couid be revived, &c.
    Now, it does not appear from tlie record that either of the causes assigned exist. It appears from the record that the court did reverse the judgment rendered by McDowell, and dismiss the case, and that, after a full investigation and hearing of tlie case. But it nowhere appears in the record that tlie court overruled'the decision of Justice McDowell, or that he decided the judgment rendered by McICnight to be no judgment.
    Tlie court here is not'’informed of any error of law; and without all the evidence, the court will not undertake to investigate the merits of the ease. (Punderson v. Love, 3 Tex. K., GO.)
    II. But, supposing the causes assigned as error to exist, does the record disclose any error?
    No complaint was filed. Without it, the justice had no jurisdiction. The complaint must describe tlie premises, &c., and lies at the foundation of tlie action, as much as a petition in tlie District Court. It may be said the summons and complaint are the same; but it is evident, from the language of tlie act-, that they are not. The summons issues after tlie filing of the complaint. Then, under this view of the case, the entire proceedings were irregular, and any judgment rendered would be an absolute nullity.
    III. Tlie record docs not show that McICnight rendered a judgment. The District Court, acting as au appellate tribunal, could not take jurisdiction of tlie case unless tlie récord showed that a judgment had been rendered below. The justice recorded simply the finding of the jury, which was not the issue submitted by the act — of guilty or not guilty. The act prescribes the maimer the judgment shall be entered: “If the"jnry find the defendant guilty, lie shall give judgment thereon for tlie plaintiff to have restitution of the premises, and shall issue bis writ of restitution.” (Hart. Dig., art. 1434.) A judgment is the consideration of the court. The [254] court, here, under this act, is a court of limited and special jurisdiction ; and the record must show that the statute has been strictly pursued. The, fugitive words, “judgment rendered,” on the opposite page, are not such a judgment as the statute requires.
   Wheelee, J.

The question to he determined is, the propriety of the overruling, in effect, of the exceptions to the petition for a certiorari, and dismissing the case brought up by it.

The case was heard on the questions of law raised by the exceptions to tlie petition. Tlie judgment of tlie court necessarily involved the overruling of tlie exceptions to the petition; for, upon the questions raised by the exceptions, the court proceeded to give final judgment, setting aside the proceedings before the justice, and dismissing tlie case. The case having been tried and finally disposed of on tlie exceptions to the petition, they cannot, as in cases 1 where tlie final trial is on other issues, be considered as having- been waived; though not expressly, they were virtually overruled.

The act of 1S4S, under which tills proceeding was instituted, does not expressly require that tlie complaint shall lie in writing. (Hart. Dig., art. 1432.) That, however, was probably the intention in requiring that the justice shall issue his summons “on complaint, upon oatli, of tlie party aggrieved,” &c. The remedy existed, under another name, previous to the act of 1848, and the former law required the complaint to be in writing-. (Hart. Dig., art. 1760.) Here tlie complaint is set out in writing in tlie summons, accompanied by tlie affidavit of tlie party, and embraces every essential requisite prescribed by the statute. No objection was taken before tlie justice that it had not been filed

127 previously to the issuing of the summons; and the objection comes too late on the return to the certiorari in the District Court. Less strictness ought to be required in proceedings before a justice of the peace, than in the District Court, where parties are supposed to have the aid of counsel.

In McNeil v. Scofflekl, (3 Johns. R., 436,) the Supreme Court of New York held that, where the defendant in the justice’s court made no objection at the time to the form of the plaintiff’s declaration, he could not avail himself of any defects which might appear on the return to a certiorari. “ Where the party (the court said)-makes no objection to the pleadings at the time, but consents to go to trial upon them, we have repeatedly decided that lie shall not avail himself of any defects in the form of pleading which may appear on (he return to the certiorari. This court will look to the right and justice of the case, without regard to technical niceties or matters of form.”

The defendant in this case went to trial without objecting to the form in which the complaint was presented. The objection is one of mere form, and, if it would have been availing at any time, ought now to be deemed to have been waived.

The remaining ground on which it is insisted that the proceedings before the justice were rightly avoided and set aside is, that he did not give judgment upon the verdict of the jury, as prescribed by the statute. (Hart. Dig., art. 1434.)

The entry of the judgment is informal and defective, and does not pursue the directions of the statute. But great liberality and indulgence are extended to the proceedings of justices of the peace, who are supposed not to be skilled in the forms of judicial proceedings observed in courts of record. If their proceedings are intelligible, and attain the ends of substantial justice, they are generally sustained.

In a case decided in the Supreme Court of New York, (to which we have been referred by counsel for the appellants,) in an action before a justice of tlie peace, the defendant pleaded a former judgment for the same cause of action before another justice. It appeared in evidence that in the former action the jury found a verdict of “ no causo of action,” but the justice rendered no judgment upon the verdict. The plea having been overruled on a certiorari, it was held that the verdict was substantially a verdict for the defendant, and, though informal, the justice ought to have rendered judgment of coarse; that though no judgment was rendered, the verdict was a bar to a second suit; for the justice was bound to give judgment on the verdict. (2 Johns. R., 181.) The court said : uWe are to overlook matters of form, and to regard proceedings before justices of the peace according to the merits.” The entry of judgment was a thing of course; and in justice and sound policy tire verdict ought to be equally conclusive against a further litigation between the same parties, on the same matter, as if the formal entry of judgment had been made.

In the case before us the verdict of the jury found the issue for the plaintiffs. The judgment and writ of restitution were matter of right and of course. And although the formal entry of the judgment was not made by the justice, the plaintiffs ought not by this omission to bo defeated of their rights. There was a final determination of the matters in controversy in the suit. And it ought to he sustained as substantially and in effect a judgment sufficient to authorize the issuing of final process, or the revival of judgment by scire facias. To require .more than reasonable certainty and intelligibility in the proceedings of those inferior tribunals, would be (in the language of the Supreme Court of Tennessee) to defeat entirely their jurisdiction. (1 Humph. R., 84.) “Our courts (it was said) have always anxiously sought to support the proceedings of justices.” “On the grounds of public policy, of necessity almost, their proceedings must be upheld whenever possible.” (3 Id., 153.)

Upon neither of the grounds which we have considered, and upon which the certiorari appears to have been sustained and the proceedings before the justices dismissed, was the certiorari, in our judgment, maintainable. And it is manifest that the averments of the petition respecting the right of the party and t.he merits oí tlie case were not sufficient to authorize the awarding oí the writ, since it is not alleged that the jjetitiouer interposed his matters of defense before the justice; nor is any reason assigned for his not having done so, or if he did, it is not shown or averred that the justice did not decide the case rightly on the whole evidence. In Ford v. Williams (6 Tex. R.) it was determined, in accordance with O’Brien v. Dunn, (5 Tex. R.,) that the petition for a certiorari must show on its face the error or illegality complained of by the petitioner, or that, by reason of some accident which he could not control, he had not made his defense before the justice. “It must (it was said) be shown that there was an attempt to make the grounds (relied on for the cer-tiorari) available on the trial, or the reasons why they were not presented must be alleged.”

Note 42. — Wahrenberger v. lloran, IS T.,67; Howerton v. Luelue, IS T.,237; Ayeoek «.wil-liams, 18 T.. 392; Davis v. Pinckney, 20 T., 340; Doyle v. Glasscock, 24 T., 200.

Rote 43. — King v. Dongcope, ante, 230.

We are of opinion that the petition for a certiorari did not disclose any sufficient grounds for the awarding of the writ, and that the judgment be reversed and the certiorari dismissed.

Reversed and dismissed.  