
    Perdew v. Steadham.
    Allegations that the defendant was innocent of killing the mare; that there was no evidence produced on the trial of said cause that he had killed the mare; that the evidence was circumstantial and not positive, and did as strongly implicate others as it did petitioner; that since the trial of the cause he had discovered other evidence of which he did not know at the time of the trial, and that it was of the utmost importance and material to his-defense; that the judgment was unjust, erroneous, and contrary to law and evidence, are not sufficient to authorize the issue of a writ of certiorari under the act of 1848.
    Where a writ ol' certiorari is improvidently issued, tlie party who was successful in the Justice’s Court may rely upon his motion made in time to dismiss; if the motion be overruled the Supreme Court will reverse and dismiss.
    Appeal from Smith. -Salt by the appellant against the appellee in a Justice’s ■Court for tlie value of a mare which belonged to the plaintiff and which the plain!iff alleged had been wrongfully killed by the defendant. Judgment for ■the plaintiff for $So. Tlie defendant filed a petition for a certiorari, in which he alleged that lie was innocent of tlie charge of killing the mare ; that there was no evidence produced on tlie trial of said cause that he had killed the mare; that tlie evidence was merely circumstantial and not positive, and did as strongly implicate others as it did the petitioner; that since the trial of tlie cause lie liad discovered other evidence of which he did not know at the time of the trial, and that it was of the utmost importance and material to his defense; that tlie judgment was unjust, erroneous, and contrary to law and ■ evidence. The certiorari was granted.
    At tile trial the plaintiff moved to dismiss the certiorari because there was ■not sufficient equity shown in the petition to entitle the defendant to the writ, ■&c. The motion was overruled. There was a verdict and judgment for the defendant. Motion for a new trial overruled. Mo statement of facts nor bill of exceptions. The error assigned was the refusal of the court below to dismiss the certiorari on the plaintiff’s motion.
    
      S. Heaves and Ochiltree %• Jennings, for appellant.
    Tlie petition does not show any error in the proceedings or rulings of the justice of the peace, but in broacl terms says the judgment was unjust". (Ilart. Dig-., art. 1753; Bllet.t v. Moore, G Tex. It., 243 ; O’Brien v. Dunn, 5 Tex. R., 57Í); Ford v. Williams, G Tex. It., 311; Titus v. Latimer, 5 Tex., 433; 6 Tex. R., 7G.) Tim allegations as to newly-discovered testimony would have been .a good showing for a new trial in the Justice’s Court, but not to entitle him to ■the writ of certiorari without showing that it was discovered too late to be .available on a motion for a new trial.
    To entitle the party to a writ of certiorari everything relating to the merits or to the errors in the court below must bo contained in tlie original affidavit. <2 Johns. Dig., pp. 149, 150, see. 5; G Johns. R., 327.)
    The. petition must show on its face the injury or error complained of by the petitioner, or that by some, accident, which he could not control, he had not made the defense before the justice going to the merits which he could liave made hut for the reasons assigned, &c.; and if no merits are shown in the petition it. should be dismissed. (Ford ». Williams, 6 Tex. R., 311.)
    The petition does not show that petitioner set up any defense, or attempted to do so before the magistrate, nor that lie was prevented from doing so, nor •does it show any cause why defense was not made. (Ib.; O’Brien ». Dunn, 5 Te.x. R., 570.) It does not show that he offered any evidence on tiie trial 'before tlie. justice, or that the. justice erred in any respect-, except the naked averment that tlie judgment was unjust, erroneous, and contrary to law and ■evidence.
    The facts must be stated which show tlie cause of action or constitute the grounds of defense. It must be shown that there was an attempt to make ■these grounds available on the. trial, or Hie reasons why they were not presented must be. alleged. (Ford v. Williams and O’Brien v. Dunn, cited above.) For want of these or any of these averments, the writ should have been dismissed.
    
      TV. P. mil, for appellee.
    The. appellant in his brief overlooks the only point in the question upon ■which the appellee, relics. The allegation in the, petition “that there was no ■evidence produced on the trial of said cause that he (petitioner) killed said sorrel mare, and that the evidence was merely circumstantial and not positive; that the evidence did as strongly implicate others as it did petitioner,” constitutes the equity upon which we rely. It states the injustice and the ground oí it; i. «., that it was rendered without evidouce.
    I. It would have been more satisfactory to have liad the evidence which was before the justice, but it is submitted that from the character and manner of conducting-trials before a justice it is impracticable to obtain the testimony.
    II. A motion to dismiss for want of equity is in the nature of a demurrer, and admits the allegations to be true; and this court will consider the allegation relied upon as true. And if true, can a more substantial and satisfactory ground exist for a rehearing than the one here stated? .
    III. Tlie courts will favor applications of this character, founded, not upon the awkward mistakes and technical errors committed by justices, but upon rulings and judgments upon the whole merits of the case. It evinces that the party applying for the aid of the court does it upon no frivolous and false pretenses, or with a litigious, unjust spirit, but because injustice has been done him upon the facts.
    IY. The verdict of the jury in the District Court shows that the grounds for the certiorari were well taken.
    Y. If the cause is dismissed on the grounds taken by the appellant, the appellee is without remedy. The case goes back .to the justice, who will issue execution, and the appellee must pay the judgment of the justice and pay all costs, and for what? Why for a cause of action which a jury, in a fair trial, have said is groundless. The appellant does not bring up a statement of facts and bills of exception to any ruling of the court below upon the merits of the cause, showing thereby a consciousness that, upon the law and the facts, the verdict was right, but he aims to dismiss the cause upon a point of pleading, and obtain ill'this way what he is not entitled to have upon the law and the facts of the case. I trust lie will not succeed, and that, looking to the character of the case, this court will administer a just rebuke to parties who urge the cause of palpable injustice upon technical grounds.
   Lipscomb, J.

This suit was originally instituted in a Justice’s Court and brought into the District by a certiorari. The petition on which the writ of certiorari was awarded showed no sufficient ground for granting it. What is required to be sworn to by a party in his petition to authorize the writ was fully discussed, and the correct rules laid down by this court in O’Brien v. Dunn, Ellett v. Moore, and Ford v. Williams. On the authority of these eases the certiorari ought to have been dismissed, on the motion of the plaintiff in the District Court, on the ground of its having been improvidently granted.

The judgment is reversed and the cause dismissed, and a procedendo ordered to be issued from the District Court to the Justice’s Court.

Reversed and dismissed.  