
    George Seeligson & Co. v. W. F. Wilson.
    (Case No. 1450.
    1. Certiorari.— When the statutory bond required on the issuance of a writ of eeriiorari refers for a description of the judgment to the petition for certiorari, and the same is fully described in the petition so that it identifies the judgment as the same found in the transcript, it will be held that the .bond sufficiently describes, the judgment.
    2. Affidavit for certiorari.—An affidavit to a petition for certiorari, “that all the material allegations of the above and foregoing petition are true so far as stated upon my own knowledge, and so far as stated upon the information of others are believed to be true,” held sufficient upon a motion to quash the certiorari on the ground of insufficiency of the affidavit, the motion failing to specify the defect.
    3. Certiorari.—Proceedings to remove a cause by certiorari to the district court are construed liberally.
    Appeal from Brazoria. Tried below before the Hon. Wm. TI. Burkhart.
    On the 21st day of October, 1879, appellants sued appellee on a note for $100, before Frank McGreal, a justice of the peace of precinct Ho. 2 of Brazoria county, and on the 19th day of January, 1880, they instituted another suit against appellee on another note for $130.39, in the same court. Certain credits were allowed on these notes, reducing them in the aggregate to less than $200. Ap■pe'llee pleaded certain counterclaims; also in reconventi'on for damages to his credit, etc. When the cause was called for trial appellants failed to appear; appellee appeared and announced ready; a trial was had and verdict returned for appellee, upon which judgment was rendered for appellants for three dollars (admitted by appellee to be due them), and the costs divided between the parties. This judgment was rendered April 5, 1880. A writ of certiorari was granted by the district judge to remove the proceedings to the district court, June 16, 1880, on the petition of appellants.
    Appellee moved to quash the writ of certiorari, on the, ground that the judgment of the justice of the peace was not properly described iix the certiorari bond, and because the affidavit to the petition wairn'ot sufficient.
    This motion was heard on the 28th day of Hovember, 1881, and was sustained by the court. Judgment was rendered dismissing the case at the costs of the appellants; from that judgment this appeal was taken.
    The errors assigned were: 1st. The court erred in holding that the bond for certiorari did not describe the judgment of the justice’s court. 2d. In holding that the affidavit was insufficient. 3d. In dismissing the case.
    The judgment stated that the case was dismissed on account of the bond and affidavit being defective.
    
      Eugene J. Wilson, for appellants.
    
      Geo. W. Duff, for appellee.
   Watts, J. Com. App.

In acting upon a motion to quash or dismiss a certiorari, the district court will always look to the petition for the writ, and to the transcript from the justice’s court, in order to determine the merits of the motion. Darby v. Davidson, 27 Tex., 432; Jones v. Nold, 22,Tex., 379.

For a description of the judgment the bond refers to the petition for the certiorari, and upon reference to the petition the judgment of the justice of the peace is found to be therein fully described. By the fiat, the writ was awarded upon the condition that the bond should be given -in the amount named by the judge, conditioned as the law requires. This was done; and besides referring to the petition for a description of the judgment, the bond gives the style of the cause, the date of the judgment, and designates the court in which it was rendered. The description of the judgment fully and clearly identifies it as the same found in the transcript from the justice’s court.

[Opinion approved January 22, 1883.]

In our opinion, the bond is sufficient in that particular, and that the court erred in holding the contrary.

Seeligson’s affidavit to the petition for the writ of certiorari is, “ that all the material allegations of the above and foregoing petition are true so far as stated upon my own knowledge, and so far as stated upon the information of others are believed to be true.” There is no specific objection to this affidavit pointed out by the motion to dismiss.

In Rollison v. Hope, 18 Tex., 446, the affidavit, was almost identical in language with that before us, and in passing upon its sufficiency Justice Wheeler said: “The affidavit is not in the most approved form. But a substantial compliance with the law is all that is required; and the law does not prescribe the terms of the affidavit, but only that the party applying shall make affidavit in writing setting forth sufficient cause to entitle him to the writ. The practice has been to construe these proceedings liberally, and not to require the same strictness which is required in the proceedings in the ordinary suits in the district court. We think the affidavit ought to be deemed sufficient in substance, especially as the motion did not point out specifically the objection now urged.”

So, also, in this case, we are of the opinion that the affidavit was sufficient and that the court erred in this particular.

We conclude, and so report, that the judgment ought to be reversed and the cause remanded.

Reversed and remanded..  