
    W. P. Darby v. James Davidson.
    Upon motion to quash or dismiss a certiorari, the District Oourt is not confined to the petition for the writ, but will always look to the transcript from the Justice’s Oourt, in order to determine the merits of the motion.
    Where it appeared by the transcript from the Justice’s Oourt, that the suit was dismissed before the writ of certiorari was sued out, the motion in the District Oourt to dismiss the petition and certiorari for that reason should have been sustained—there being, in such case, no office for the writ to perform.
    Appeal from Fayette. Tried below before the Hon. George W. Smith.
    Suit by Davidson before a justice of the peace, to recover from Darby some $39, upon an account stated. Darby reconvened and obtained judgment against Davidson for $86, and costs. Davidson brought the case by certiorari to the District Court, where he recovered judgment for $31 25. The other facts appear in the opinion.
    
      W. G. Webb, for the appellant,
    
      John W. Harris, for the appellee.
   Bell, J.

It is only necessary to the disposition of this case to say, that the court below erred in overruling the niotion to dismiss the petition and certiorari. One of the grounds of the motion was, “because it appears in the transcript of the proceedings had in this cause in the Justice’s Court, now on file, that said plaintiff, on the 4th day of July, A. D. 1855, dismissed his said suit.” In overruling the motion to dismiss the certiorari, the record discloses that the court below proceeded upon the idea that the transcript from the Justice’s Court could not properly be considered, but that the court was confined to the petition itself. This was error. This court has repeatedly held, that upon a motion to quash or dismiss a certiorari, the District Court will always look to the transcript from the Justice’s Court in order to determine the merits of the motion. (Jones v. Nold, 22 Tex., and cases there cited.) An examination of the transcript of the proceedings in the Justice’s court, in the present case, shows, that after the rendition of judgment in favor of Darby, a new trial was granted by the justice, on the motion of Davidson. Of course, the former verdict and judgment were set aside. Afterwards, on the 4th of July, A. D. 1855, Davidson dismissed his suit. His action in dismissing the suit seems to have been concurred in by Darby, who had pleaded in reconvention. Davidson afterwards filed the petition for certiorari. This action may have been induced because the justice, after the dismissal of the suit by Davidson, proceeded to award execution upon the judgment formerly recovered by Darby, and which had been set aside, as may be inferred from the justice’s transcript, and as is intimated in the petition for certiorari. If the justice awarded execution in favor of Darby upon his former judgment, it was a nullity, and Davidson’s remedy was by injunction. There was no case in the Justice’s Court to bring up to the District Court—no office for a writ of certiorari to perform. The petition for certiorari ought, therefore, to have been dismissed. It is, therefore, ordered, that the judgment of the court below be reversed and the cause dismissed.

Judgment reversed and cause dismissed.  