
    Ahrens v. Giesecke.
    That the petitioner had a meritorious defense, and that he was prevented by sickness from appearing before tho Justice’s Court at tlie trial is a sufficient showing for a certiorari, without disclosing the nature of the defense.
    It is error for the District Court, on dismissing a co'iiorari for insufficiency in the petition, to affirm the judgment of the Justice’s Court.
    Quere? Whether there is any limitation to the right to obtain a certiorari to a Justice’s Court. And see this case in favor of the writ of certiorari generally.
    Appeal from Brazoria. The appellee, Edward Gicsecke, administrator of. tho estate of Christian Schwarze, caused a writ to bo issued from a Justice’s Court in Brazoria, commanding the appellant, Henry Ahrens, to appear and answer a charge of detaining unlawfully in his possession goods and property of the estate of Christian Schwarze, of the value of ninety-live dollars, attaching to the said writ an inventory of the property alleged to he wrongfully detained. This writ and inventory issued from the Justice’s Court on the 7th day of February, 1847. After many continuances of the cause in the Justice’s Court judgment was rendered, tlie defendant in said court failing, to appear, decreeing that the plaintiff recover of defendant the sum of ninety-live dollars, with interest from that date, and costs of suit.
    This judgment was rendered on tlie lGth of October, 1847, . The defendant appealed to the District Court. The proceedings in the Justice’s.Court were sent up to tlie District Court and filed 28th October, 1847. The District Court dismissed the cause for want of jurisdiction, and gave judgment against the appellant for the costs of the appeal.
    The court also ordered that its judgment be certified to the Justice’s Court, and that tlie original papers be sent down to the Justice’s Court. More than a year having transpired since the judgment of the Justice’s Court was rendered, and execution never having issued, a suit was brought on tlie 15th day of June. 1S50, to revive the former judgment.- . On the 31st day of August, 1S30, botli parties appeared and judgment was rendered against Henry Ahrens, by the justice who tried the cause, for ninety-five dollars and interest at eight per cent, from the date of the former judgment. On the 8th of November, 1S50. tlie appellant Alirens filed his petition in the District Court praying for a writ of certiorari to revise the judgment rendered by the Justice’s Court on the 31st August preceding. In the District Court, at the first term, Giesecke demurred to the petition for a certiorari and answered. Afterwards, at the same term, he moved to dismiss. At the Fall Term, 1851,.of.the District Court the court rendered its judgment quashing the certiorari, dismissing the defendant’s petition, and affirming the judgment of the Justice’s Court and for costs.
    The petition for the certiorari represented “that the record of the said judg“ment, (the first judgment,) if it was ever made of record, was not produced “ by the said Giesecke, nor was its absence accounted for upon the trial of the “cause before the said. W. C. C. Lynch, lie further represents that the “saidLynch permitted the said administrator to prove the said original judg“ment by a paper which had been of file in the District Court of Brazoria “ comity, signed by tlie said Ayeock (before whom the first judgment had been “obtained) as justice of tlie peace, aud which said paper neither purported to “be the original judgment in said cause nor a certified transcript of said judg- “ ment; and that your petitioner was wholly prevented from proving upon the “trial of said cause before the said Lynch that lie owed tlie said Giesecke, “administrator, as aforesaid, nothing, at the time the said original judgment “was rendered against him as aforesaid.” In a preceding part of his petition he had represented that he had been unable from illness to attend the trial at which the first judgment was rendered, and that he had just and.meritorious defense to the said action, and that he was not indebted to the said Giesecke, administrator, as aforesaid, nor to said deceased.
    
      P. Me Great, for appellant.
    
      J. H. Bell, for appellee.
   Lipscomb, J.

In this case it is alleged that tlie District Court erred in quashing and dismissing the certiorari, and affirming the judgment of the justice of the peace.

In the case of O’Brien v. Dunn (5 Tex. R., 571) tlie course of proceeding in the District Court upon a ease being brought before it by a writ of certiorari from a Justice’s Court was distinctly and clearly defined. If the petition shows no sufficient ground, nothing of which the petitioner could justly complain, it ought, on the motion of the adverse party at the first term, to be dismissed; but if there be a sufficient ground for its issuance apparent on its face it will be retained and set down for trial de novo on its merits.

The petitioner in this case alleges in his petition that he did not owe anything to the plaintiff in the suit against him in the Justice’s Court; that he was prevented from making his appearance and defense before the justice at the time of the trial by severe sickness. Hero is a showing- upon oath of merits and a reasonable excuse for not making- his defense before the justice. This is sufficient ground for overruling- the motion to dismiss and retaining the case for a trial on the merits, disregarding the previous trial at the Justice’s .Court. The court below erred therefore in quashing and dismissing the certiorari, for which error the judgment must be reversed.

There is another error presented that would have made it our duty to reverse the judgment, even if there liad been no sufficient ground shown for the issuance of the certiorari and it had been properly dismissed. The court below, after quashing- and dismissing the certiorari, proceeded to affirm the judgment of the justice of the peace. This it liad no right to do. All that could be done in such case would have been to have awarded a procedendo to the justice of the peace to proceed to have his judgment executed. For the reasons given, the judgment, of the District Court is reversed and the cause remanded, with instructions to try the case anew upon the merits.

Beversed and remanded.  