
    McKAY v. BUEHRING.
    No. 8073.
    Court of Civil Appeals of Texas. Austin.
    Feb. 20, 1935.
    Rehearing Denied March 6, 1935.
    Theo W. Lueders, of Da .Grange, for appellant.
    E. C. Overall, of Gonzales, for appellee.
   BAUGH, .Justice.

Appeal is from a judgment of the county court in favor of appellant against appellee for $48.50, in a hearing after certiorari granted to the justice court to review a judgment there rendered for appellant against appel-lee for $193.50, upon an open account. An appeal to the county court was attempted upon affidavit of inability to pay costs, filed eight days after the justice court judgment. The transcript was sent by the justice court to, and filed in, the county court, but was later dismisséd in the county court upon motion of appellant on the ground that the affidavit, under the provisions of article 2457, R. S., as amended by Acts 1931, 42'd Deg., p.. 226, c. 134, § 2 (Vernon’s Ann. Civ. St. art. 2457), was filed too late. Thereupon, appel-lee applied to the county court for writ of certiorari, which was granted.

We do not deem it necessary to discuss at length the issues raised. , The application for certiorari complied with the provisions of articles 941, '945, and 2460, R. S. Any negligence on the part of appellee in presenting valid defenses in the justice court was negatived in the application for certiorari. The matter of granting such application under the circumstances was one addressed to the sound discretion of the county court, and we find no abuse of that discretion. Under the record presented, we think it clear that an injustice to appellee would have resulted from failure to do so. Dikewise, the question of whether appellee in her attempted appeal was guilty of negligence in not filing her affidavit of inability to pay costs witbin tbe five days prescribed by article 2457, R. S., a,« amended, was one addressed to tbe discretion of tbe county court. And under tbe facts shown we do not find any abuse of discretion in that respect.

Tbe county court baying properly acquired jurisdiction by certiorari, under its discretionary power to grant sucb writ, tbe trial became one de novo in that court. Tbe case was there tried to tbe court without a jury and judgment rendered as above stated. Tbe pleadings, the findings of fact filed by tbe trial court, and tbe evidence were clearly sufficient to sustain tbe judgment entered. No new nor novel issues of value to the jurisprudence of tbe state are raised by tbe is sues presented on tbe appeal. We have carefully considered the assignments presented, find them without merit, and they are overruled. Under the policy announced in Associated Indemnity Corporation v. Gatling (Tex. Civ. App.) 75 S.W.(2d) 294, we deem it unnecessary to discuss them here. Finding no error in tbe record, tbe judgment of tbe trial court is affirmed.

Affirmed.  