
    John McDonald v Joseph P. Cross.
    Where it appeared from the transcript of proceedings in the Justice’s Court, that the applicant for certiorari had dismissed his motion for a new trial after it had been granted, it was held that the judgment of the District Court, dismissing the certiorari, must be affirmed, without regard to the sufficiency of the petition for certiorari, in other respects.
    Error from Eannin. Tried before the Hon. William S. Todd. *
    Certiorari to Justice’s Court. It appeared from the docket entries of the Justice, that after a trial by jury, McDonald moved for a new trial, which was granted, and the cause ordered to be continued ; and that McDonald afterwards “ appeared by attorney and dismissed his motion for a new trial.”
    
      J. T. Mills, for plaintiff in error.
   Wheeler, J.

It does not become necessary to pass upon the legal sufficiency of the petition ; for the reason that there is another ground upon which the judgment must be affirmed. It appears by the transcript brought before the Court in obedience to the certiorari, that the petitioner asked and obtained a grant of a new trial before the Justice ; and that he voluntarily declined it after it was granted. Though he was not bound to apply for a new trial, in order to entitle him to a certiorari, (Ward v. McRimmond, 12 Tex. 314,) yet having done so, and having obtained the grant of it, he was not entitled to a certiorari ; nor could he entitle himself to have the case removed to the District Court, by declining to proceed to trial before the Justice. The grant of a new trial placed him in the same position he occupied before the trial; and he could no more remove the cause to the District Court at that stage of it, than before there had been, any trial in the case. The presumption is that he would have had justice done him upon a second trial, and it was his own fault that he declined it.— He should, at least, have exhausted the means of redress there accorded to him. Not having done so, the certiorari was rightly dismissed, and the judgment is affirmed.

Judgment affirmed.  