
    HODGINSON v. PENA.
    (No. 6867.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 24, 1923.)
    1. Appeal and error <&wkey;554(3), 773(4) — When record consists of transcript only and no brief is filed, judgment will be affirmed, except for fundamental error.
    Where no statement of facts or briefs are filed, but the record consists only of the transcript, the judgment must be affirmed, unless fundamental error is apparent from the record.
    2. Justices of the peace &wkey;>l94(2) — What must be shown to be entitled to writ of certiorari.
    An application for writ of certiorari will not be entertained where it does not show: First, that applicant has exercised due diligence and lost his right of appeal through no neglect on his part; and, second, that he has a good defense against his adversary which entitles him to recover.
    Appeal from Bexar County Court of Civil Cases; McCollum Burnett, Special Judge.
    Action by Albert Pena against C. H. Hod-ginson. Judgment for plaintiff, and defendant appeals.
    Affirmed.
   SMITH, J.

íhe record consists of the transcript only. No statement of facts or briefs were filed in the cause, and therefore the judgment must be affirmed, unless fundamental error is apparent from the record presented. The suit was originally instituted in the court of a justice of the peace, where it was tried and judgment was rendered on November 23, 1921. No motion for new'trial was filed, nor appeal to'the county court taken, so far as the record shows. But on January 25, two months later, appellant filed in the county court an application for writ of certiorari to the justice’s court, which was granted, but later dismissed, this appeal resulting. ¡

The application for writ of error was insufficient, and was properly dismissed. In ofder to warrant writ of certiorari in such cases, it must be shown: First, that the applicant has exercised due diligence and lost his right of appeal through no neglect on his part; and, second, that he has a good defense against his adversary which entitles him to recover. Here neither element was shown in the application. No diligence whatever was shown by appellant, and no facts whatever were set up- to show his defenses, if any he had.

The judgment is affirmed. 
      ©r^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     