
    Wood v. Rich.
    Where a certiorari is improvidently issued, and the party who was successful in the Justice’» Court moves to dismiss on that ground, and his motion is overruled, he may abandon the case and rely upon having the certiorari dismissed on appeal or writ of error.
    A certiorari to bring up the case for a new trial is not the proper remedy where a justice of the peace issues an execution after the expiration of twelve months without a revival of the judgment.
    Appeal from Rusk.
    
      J. JR. Armstrong, for appellaut.
   Lipscomb, J.

This suit was originally brought in the court of a justice of the peace. Judgment was given for the plaintiff, and the defendant appealed. The appeal was dismissed by the District Court for want of jurisdiction, and an execution was issued from the Justice’s Court and levied on the property of the defendant. The defendant then petitioned a judge of the District Court for and obtained a certiorari. A motion was made to dismiss the certiorari for want of a showing of sufficient grounds for its award in the petition, which motion was overruled, and judgment rendered for tiie defendant.

The petition is obnoxious toxthe same objection made and sustained by us in the case of Perdew v. Steadham, and is further objectionable in this, that tiie ouiy material ground of complaint set out in the petition is as to the regularity of tiie issuance of tiie execution by the justice of tiie peace after tiie expiration of twelve months from the rendition of the judgment. Now, if this is true, and it is available, it is not' by a certiorari to bring up and try tiie •cause as a new one. Another remedy should have been brought. Tiie judge erred in refusing to dismiss on the motion of the plaintiff. The judgment is reversed and the cause dismissed, and the District Court required to issue a procedendo to the Justice’s Court, where the judgment was rendered.

Reversed and dismissed.  