
    No. 12,243.
    The State ex rel. Greene, vs. Frederick, Justice of the Peace.
    The defendant cited to answer the demand before the justice of the peace, is entitled on entering his appearance to a reasonable delay for procuring testimony, and if judgment against defendant is rendered without the opportunity afforded of obtaining his testimony, relief will be given by the writ of certiorari, directing the trial anew, and arresting the execution of the judgment. Constitution, Art. 90; Code of Practice, Arts. 1083, 1081, 861, 866; 35 An. 1101.
    y^PPLIC ATI ON for Writs of Certiorari, Mandamus and Prohibition.
    
      J. Nelson Greene and W. P. Edwards for Relator.
    
      L. L. Bourges for Respondent.
    Submitted on briefs October 3, 1896.
    Opinion handed down October 10, 1896.
   The opinion of the court was delivered by

Miller, J.

The relator bases his claim for relief on that article of the Code of Practice which ■ entitles the defendant cited before a Justice of the Peace to a reasonable time for procuring his evidence.

It seems, that cited to appear, he applied for a commission to take testimony. Without issuing the commission, the justice decided the suit against the defendant. We think, under the circumstances, the trial should have been postponed until the desired testimony was obtained, or, at least, the opportunity for obtaining it was afforded. C. P., Arts. 1082, 1084.

We are better satisfied with this view, as the justice states in his return a new trial would have been granted if it had been asked.

It is therefore ordered that the judgment referred to in the application be set aside, and a reasonable time be allowed the relator to obtain his testimony, and the suit then proceed to judgment in due course.  