Opinion
No. 3585.
November 24, 1937.
Appeal from Rusk County Court; W. E. Youngblood, Judge.
Application by D. E. Cozart and the Abilene Salvage Company for writ of certiorari to review a judgment obtained against them by H. S. Buck. From a judgment granting a motion to dismiss the writ, D. E. Cozart and the Abilene Salvage Company appeal.
Reversed and remanded.
Cox Hayden, of Abilene, and Brachfield Wolfe, of Henderson, for appellants.
M. H. Barton and H. E. Florey, both of Overton, for appellee.
In the justice court the appellee recovered judgment for $144 against the appellants D. E. Cozart and Abilene Salvage Company. Later the defendants named applied for a writ of certiorari to review the judgment, which writ was granted. Later appellee, Buck, moved to dismiss the writ. The motion to dismiss was granted, the record showing affirmatively it was granted because Cozart and Abilene Salvage Company had not pursued their remedy of appeal from the judgment of the justice of the peace. In this ruling the court erred; for, as a general proposition, the remedy of certiorari is cumulative of, and independent of, the right to appeal in the ordinary manner. It is not essential that the applicant should show why he did not appeal. 26 Tex.Jur. p. 890; B. E. Hail v. J. F. Magale, 1 White W. Civ.Cas.Ct.App. § 852; Quinn Browser v. Elam, 1 White W. Civ.Cas.Ct.App. § 1108; Von Koehring v. Schneider, 24 Tex. Civ. App. 469, 60 S.W. 277; Lucas et al. v. Harrison et al. (Tex.Civ.App.) 139 S.W. 659; Lanning v. Yarbrough (Tex.Civ.App.) 35 S.W.2d 211; Northside Chevrolet Co. et al. v. Nolen (Tex.Civ.App.) 67 S.W.2d 520.
Reversed and remanded.